LAW ON CRIMINAL PROCEEDINGS WITH AMENDMENTS
GJPI Annotated and Amended Translation
28 October 2010
Criminal Procedure Code 23 of 1971
(as amended to 14 March 2010)
Law Number 23 of 1971
Decree number 230
In the name of the People
The Revolutionary Command Council:
Based on the provisions of the 42nd article, sub-paragraph a, of the temporary Constitution 1970, and derived from the submissions of the Minister of Justice.
The Revolutionary Command Council has decided, in its session held on 14 February 1971, to issue the following law: Number 23 of 1971
Criminal Procedure Code[1]
|Contents |
|Introduction |
|List of Amendments to the Criminal Procedure Code 1971 to 2009 |
| |
|Criminal Procedure Code 23 of 1971 |
| |Articles |
|Book 1: Criminal Proceedings | |
|Section 1 |1-20 |
|Chapter 1: The Civil Plaintiff |10-20 |
|Section 2: Abandonment, suspension and termination of Civil Cases |21-29 |
|Section 3: General Prosecution |30-38 (deleted) |
| | |
|Book 2: Investigation of Offences, Collection of Evidence and Initial Investigation | |
|Section 1: Investigating Offences |39-46 |
|Section 2: Notification of Offences |47-48 |
|Section 3: Investigations Conducted by the Police |49-50 |
|Section 4: The Initial Investigation |51-86 |
|Chapter 1: General Provisions |51-57 |
|Chapter 2: Hearing Witnesses |58-68 |
|Chapter 3: Appointment of Experts |69-71 |
|Chapter 4: Search |72-86 |
|Section 5: Methods or Compulsion to Attend |87-136 |
|Chapter 1: Summons |87-91 |
|Chapter 2: Arrest |92-108 |
|Chapter 3: Detention and Release of the Accused |109-120 |
|Chapter 4: Seizure of Possessions of an Accused Person who has Absconded |121-122 |
|Chapter 5: Questioning of the Accused |123-129 |
|Chapter 6: Decisions of the Judge after the End of the Investigation |130-136 |
| | |
|Book 3: Courts | |
|Section 1: Types of Penal Court and Their Jurisdiction |137-142 |
|Section 2: Appearance in Court of Defendant and Other Litigants |143-151 |
|Section 3: Court Procedure |152-229 |
|Chapter 1: General Principles in the Trial |152-166 |
|Chapter 2: Court Procedures in non-Summary cases |167-182 |
|Chapter 3: Seizure of Defendant’s Assets |183-186 |
|Chapter 4: Charge |187-193 |
|Chapter 5: Conciliation |194-198 |
|Chapter 6: Cessation of Criminal Proceedings |199-200 |
|Chapter 7: Trials in Summary Cases |201-211 |
|Sub-chapter 1: Trial and Ruling |201-204 |
|Sub-chapter 2: Penal Order |205-211 |
|Chapter 8: Rulings and Their Reasons |212-226 |
|Sub-chapter 1: The reasons |212-221 |
|Sub-chapter 2: The ruling |222-226 |
|Chapter 9: Arguments of Provisions and Decrees |227-229 |
|Section 4: Proceedings Against those with Diminished Responsibility |230-242 |
|Chapter 1: Insane Persons |230-232 |
|Chapter 2: Juveniles |233-242 |
| | |
|Book 4: Methods of Reviewing Judgements | |
|Section1: Objection to Judgement in Absentia |243-248 |
|Section 2: Cassation |249-265 |
|Section 3: Correction of the Cassation Decision |266-269 |
|Section 4: Re-trial |270-279 |
| | |
|Book 5: Implementation | |
|Section 1: General Principles |280-284 |
|Section 2: The Execution |285-293 |
|Section 3: Implementation of Custodial Sentences and Fines |294-299 |
| | |
|Book 6: Miscellaneous | |
|Section 1: Conclusion of a Criminal Case |300-307 |
|Section 2: The Handling of Impounded Goods |308-316 |
|Section 3: Commitment to Keep the Peace and to be of Good Behaviour |317-330 |
|Chapter 1: Commitment to Keep the Peace |317-320 |
|Chapter 2: Commitment to Good Behaviour |321-324 |
|Chapter 3: Joint Rulings to Keep the Peace and by of Good Behaviour |325-330 |
|Section 4: Conditional Discharge |331-337 |
|Section 5: Pardon by the Victim |338-341 |
|Section 6: Rehabilitation |342-351 (deleted) |
|Section 7: Requests for Legal Assistance and Extradition of Criminals |352-368 |
|Chapter 1: Requests for Legal Assistance |353-356 |
|Chapter 2: Extradition of Criminals |357-368 |
|Section 8: Transitional Provisions |369-370 |
|Section 9: Final Paragraphs |371-373 |
Introduction
The University of Utah, SJ Quinney College of Law, Global Justice Project: Iraq is funded by a grant from the US State Department, Bureau of International Narcotics and Law Enforcement Affairs.
The Iraqi Criminal Procedure Code 23 of 1971 replaced the Baghdad Procedure Code of 1919. It was modelled on the Egyptian Criminal Procedure Code 150 of 1950, which itself was based upon the Napoleonic Codes adopted in Egypt in the late 19th Century.
Although widely referred to in English as ‘The Criminal Procedure Code’ the word for word literal translation of the Arabic (qanun usul al-muhaakamaat al-jizaiyya) is principles of penal (jazaiyya) trials (muhaakamaat)
The original translated text of the Criminal Procedure Code 23 of 1971 was taken from the PDF file incorporating amendments up to 1986 which is freely available in a number of places including:
The translation was revised in part by GJPI; many omissions and errors were identified and amended; all post-1971 amendments were checked against the texts in the Arabic Official Gazette, the English language Official Gazette, published between 1959 and 2002, the CPA era Official Gazette published in English and Arabic in 2003 – 2004 and GJPI English translations of the post CPA era Official Gazette where relevant.
We can say that it is better than when we first started, but we cannot guarantee the accuracy of the translation. A number of errors have come to light only when we deepened our understanding of the way that the law operated and we cannot claim to have perfected this understanding.
Some anomalies remain:
The CPA Orders would appear to have been written in English and then translated into Arabic. Sometimes the translation gives a different result when the order is applied to an English translated text compared to the Arabic text. We have tried to capture the effect on the Arabic text.
CPA Memorandum 3, which amends a number of provisions of the Criminal Procedure Code, exists in two versions – the version signed on 18 June 2003 and published in the Official Gazette, issue 3978 of 17 August 2003 and a revised version, signed on 27 June 2004, which was never published in the Official Gazette (which is the version on the CPA archive website at ).
In so far as it directly applies to the text of the Criminal Procedure Code No. 23 of 1971, the primary substantive difference is that Article 179 was purportedly amended to delete the words “A refusal to answer will be considered as evidence against the Defendant” in the original published CPA Memorandum 3, but not in the revised unpublished version. This difference may have been cause by the fact that the phrase actually contained in Article 179 of the Criminal Procedure Code has the opposite meaning (“A refusal to answer will not be considered as evidence against the Defendant” [our emphasis]) and therefore did not need amendment. There is also a different numbering scheme between the two versions. CPA orders and memoranda are said to have come into force upon the date of signature (rather than publication) and are not made under any of Iraqi’s pre-2003 constitutions. However publication in the Official Gazette would appear to be being regarded as a de-facto requirement and Iraqi Arabic texts and commentaries[2] do not follow the revised version – and nor do the laws which have been passed to amend or repeal various provisions of CPA Memorandum 3, such as the Law Re-establishing the procedures concerning the Death Penalty No. 13 of 2007, which refers to the organisational structure of the original CPA Memorandum 3. We have therefore relied upon the text and structure of the original CPA Memorandum 3.
In both versions of Memorandum 3, the text providing the right to legal representation whilst in detention[3] is poorly translated. The aim in English was to give those accused suspected of a felony [jinaiyya] offence the right to legal representation whilst in detention (although free legal representation does not seem to be envisaged). Instead the Arabic translation uses the term [jinaiyya jazaiyya] this conveys the meaning merely of a criminal offence generally (not specifically a felony).
Articles 285 to 293 (operation of the death penalty) were suspended by CPA Memorandum 3, Section 4(m) and then restored by Law 13 of 2007 which purported to have retrospective effect. One consequence of that retrospective effect would be that any one executed other than in accordance with these provisions in the intervening period was not lawfully executed.
The are a number of references to the Ministry of Justice or the Minister of Justice within the text of the Criminal Procedure Code which are clearly designed to refer to the Ministry in its former role in authority over the judiciary. CPA Order 35 re-established the Council of Judges independent of the Ministry of Justice (the Council of Judges later evolved into the Higher Judicial Council pursuant to CPA Order 100 Section 3(13) and Article 45 of the Transitional Administrative Law). Section 7 of CPA Memorandum 12, signed on 8 May 2004, published in the Official Gazette, issue 3985 of July 2004 rather unhelpfully states:
References in Iraqi law to the Ministry of Justice or the Minister of Justice shall, where necessary and proper in light of CPA Order 35 or the Law of Administration for the State of Iraq for the Transitional Period, or where otherwise necessary and proper to maintain the independence of the judiciary, be construed to refer to the Council of Judges or its President, or to the Court of Cassation or its Chief Judge, or to the Supreme Federal Court or its Presiding Judge, as appropriate. The courts shall have sole jurisdiction to adjudicate disputes in this connection.
We have made reference to this change wherever relevant. There is one reference (in Article 136(A)) where it is arguably neither necessary nor proper to alter the text from Minister of Justice to a judicial figure given the political nature of the decision making envisaged.
Where it appears necessary to improve clarity, we have indicated in square brackets before the word ‘judge’ that the reference must mean [investigative] judge[4]. We have also indicated in square brackets where the word ‘investigator’[5] must mean [judicial] investigator[6] (a class of persons employed by the Higher Judicial Council) or in the alternative a police investigator who has formally been given the powers of a judicial investigator pursuant to Article 51(E) of the Criminal Procedure Code and RCC Resolution 12 of 1995. We have used the rather inadequate translation ‘crime scene officer’ as a translation of ‘a’dah’ al-dhabit al-qadai’.[7] ‘Accused’ is used as a translation of mutahim rather than ‘defendant’ which relates to civil cases. The words iqrar (admission) and i’tiraf (confession) appear to have been used interchangeably.
A separate text contains the law as it applies in the Kurdistan Region of Iraq. Following Kurdish Decree 11 of 1992, the view of Kurdish lawyers, judges and legislators is that save for laws relating to the exclusive federal powers as listed in Article 110 of the 2005 Constitution, post 1992, new laws and amendments to existing law originating from Baghdad are not recognised as applicable in the Kurdistan Region of Iraq unless expressly endorsed by legislation of the Kurdistan Parliament. This includes the CPA orders issued in 2003 / 2004 - despite the wording of Articles 26 and 54(B) of the Transitional Administrative Law.
It may be noteworthy that the recommendations presented to the Council of Representatives by the sub-committee to the Constitutional Review Committee have proposed that Criminal (and Civil) Procedure matters become part of the exclusive federal jurisdiction. Only time will tell if these amendments are passed.
List of Amendments and Supplements to the Criminal Procedure Code No. 23 of 1971
*Law 61 of 1972 (First amendment to the Criminal Procedure Code No. 23 of 1971) published in the Official Gazette, issue 2149 of 8 June 1972
*Law 34 of 1974 (Second amendment to the Criminal Procedure Code No. 23 of 1971), published in the Official Gazette, issue 2333 of 27 March 1974
*Law 65 of 1974, (Third amendment to the Criminal Procedure Code No. 23 of 1971), published in the Official Gazette, issue 2348 of 7 May 1974
*Law 193 of 1975 (Fourth amendment to the Criminal Procedure Code No. 23 of 1971, published in the Official Gazette, issue 2504 of 15 December 1975
*Law 91 of 1976 (Fifth amendment to the Criminal Procedure Code No. 23 of 1971), published in the Official Gazette, issue 2545 of 23 August 1976
*Law 35 of 1977 (Legal System Reform), published in the Official Gazette, issue 2576 of 14 March 1977
*Law 201 of 1978 (Sixth amendment to the Criminal Procedure Code No. 23 of 1971), published in the Official Gazette, issue 2691 of 8 January 1979 (re Article 136(b))
*RCC Decision 997 of 30 July 1978, published in the Official Gazette, issue 2667 of 7 August 1978
*RCC Resolution 218 of 1979, published in the Official Gazette, issue 2699 of 26 February 1979
*Law 159 of 1979 (Public Prosecution Law), published in the Official Gazette, issue 2746 of 17 December 1979
*Law 160 of 1979 (Judicial Organisation Law), published in the Official Gazette, issue 2746 of 17 December 1979
*Law 33 of 1980 (Seventh amendment to the Criminal Procedure Code No. 23 of 1971), published in the Official Gazette, issue 2757 of 18 February 1980
*Law of Implementation No 45 of 1980, published in the Official Gazette, issue 2762 of 17 March 1980
*Law 201 of 1980 (Eighth amendment to the Criminal Procedure Code No. 23 of 1971), published in the Official Gazette, issue 2807 of 15 December 1980
*RCC Resolution 895 of 1981, published in the Official Gazette, issue 2842 of 27 July 1981
*RCC Resolution 453 of 1984, Article 1, published in the Official Gazette, issue 2991 of 30 April 1984
*RCC Resolution 794 of 1984, published in the Official Gazette, issue 3003 of 23 July 1984
*Law 78 of 1984 (Ninth amendment to the Criminal Procedure Code No. 23 of 1971), published in the Official Gazette, issue 3010 of 10 September 1984
*RCC Resolution 748 of 1987 (re-instating Article 136(b)), published in the Official Gazette, issue 3171 of 12 October 1987
*Law No. 119 of 1987 (Amendment to the Criminal Procedure Code No. 23 of 1971), published in the Official Gazette, issue 3184 of 11 January 1988
*Law No. 119 of 1988 (Tenth amendment to the Criminal Procedure Code No. 23 of 1971), published in the Official Gazette, issue 3222 of 3 October 1988
*RCC Decree, No. 104 of 1988, published in the Official Gazette, issue 3188 of 2 August 1988
*RCC Resolution No. 460 of 1991 published in the Official Gazette, issue 3387 of 6 January 1992
*Law 9 of 1992 (Eleventh Amendment to the Criminal Procedure Code No. 23 of 1971), published in the Official Gazette, issue 3402 of 20 April 1992[8]
*RCC Resolution 76 of 1994, published in the Official Gazette, issue 3517 of 4 July 1994
*RCC Resolution 120 of 1994, published in the Official Gazette, issue 3526 of 5 September 1994
*RCC Resolution 12 of 1995, published in the Official Gazette, issue 3547 of 23 January 1995
*RCC Resolution 42 of 1995, published in the Official Gazette, issue 3562 of 8 May 1995
*Law 10 of 1995 (Amendment to the Criminal Procedure Code No. 23 of 1971), published in the Official Gazette, issue 3568 of 19 June 1995
*RCC Resolution 80 of 1996, published in the Official Gazette, issue 3630 of 12 August 1996
*RCC Resolution 137 of 1996, published in the Official Gazette, issue 3647 of 9 December 1996
*RCC Resolution 157 of 1996, published in the Official Gazette, issue 3651 of 6 January 1997
*RCC Resolution 101 of 1999, published in the Official Gazette, issue 3781 of 5 July 1999
*Law 20 of 1999 (Amendment to the Criminal Procedure Code No. 23 of 1971), published in the Official Gazette, issue 3785 of 2 August 1999
*Law 30 of 2001 (Amendment to the Criminal Procedure Code No. 23 of 1971), published in the Official Gazette, issue 3872 of 2 April 2001
*Law 87 of 2001 (amendment to Article 331 to exclude those convicted of sex crimes from conditional early release), published in the Official Gazette, issue 3904 of 12 November 2001
*Instructions 3 of 2001, published in the Official Gazette, issue 3874 of 16 April 2001
*CPA Order 7, signed 10 June 2003, published in the Official Gazette, issue 3978 of 17 August 2003
*CPA Order 13 (establishing the CCCI) (revised) (amended), signed 22 April 2004, published in the Official Gazette, issue 3983 of June 2004[9]
*CPA Order 31, signed 10 September 2003, published in the Official Gazette, issue 3980 of March 2004
*CPA Order 41: Notification of Criminal Offences, signed 15 September 2003, published in the Official Gazette, issue 3980 of March 2004
*CPA Memorandum 3, signed 18 June 2003, published in the Official Gazette, issue 3978 of 17 August 2003[10]
*CPA Memorandum 12: Administration of Independent Judiciary, signed 8 May 2004, published in the Official Gazette, issue 3985 of July 2004
*Executive Order 3 of 2004: Reintroducing the death penalty for a limited number of crimes, published in the Official Gazette, issue 3987 of September 2004
*Interim Government Order 14 of 2005 (restoring Article 136(b)), published in the Official Gazette, issue 3995 of 3 March 2005
*Anti-Terrorism Law No 13 of 2005
*Law No. 10 of 2006: Amendment to Public Prosecution Law No. 159 of 1979
*Law No. 13 of 2007: Reintroducing the safeguards contained in the Criminal Procedure Code No 23 of 1971 for the application of the death penalty, published in the Official Gazette, issue 4039 of 18 April 2007
*Military Penal Law No. 19 of 2007
*Military Criminal Procedure Law No. 30 of 2007
*Internal Security Forces Penal Law No. 14 of 2008
*Internal Security Forces Criminal Procedure Law No. 17 of 2008
*Amnesty Law No. 19 of 2008
*Law No. 15 of 2009, published in the Official Gazette, issue 4133 of 17 August 2009 (False Notification of an Offence)
BOOK ONE
Criminal Proceedings[11]
Section 1
Article 1
A. Criminal proceedings are initiated by means of an oral or written complaint submitted to an investigative judge[12], a [judicial] investigator, a policeman in charge of a police station, or any crime scene officer by an injured party, any person taking his place in law, or any person who knows that the crime has taken place. In addition any one of those listed can notify the Public Prosecution unless the law says otherwise. In the event of a witnessed offence the complaint may be submitted to whichever police officers or sub-officers are present.
B. An offence is considered to have been witnessed if it was witnessed whilst being committed or a shortly afterwards or if the victim followed the perpetrator afterwards or if shouting crowds followed him afterwards or if the perpetrator was found a short while later carrying the equipment or weapons or goods or documents or other things pointing to the fact that he was a perpetrator or participant in the offence or if traces or signs indicate this at the time.
Article 2
The complaint may not be dropped, cancelled or withdrawn from nor can the judgment issued on it be withdrawn from or not executed, except under the circumstances explained in the law.
Article 3
A. The complaint can only be set in motion on the basis of a complaint from the aggrieved party or someone taking his place in law in relation to the following offences:
i. Adultery or polygamy in contravention of the law of personal circumstances.
ii. Slander, verbal abuse, divulging secrets, threats or slight injury provided that the offence was not committed against someone in the performance of a public service or because of it.[13]
iii. Theft, rape, breach of trust, fraud, or acquisition of items by these means, if the aggrieved party is a spouse or descendent of the perpetrator and these items were not seized legally or administratively or legally transferred to another person.
iv. Damage to property or sabotage, other than that involving slate property, if the offence is not subject to aggravating circumstances.
v. Violation of the sanctity of property, entering or passing through land that has been cultivated, prepared for cultivation or contains crops or allowing animals to go into such land.
vi. Throwing stones or other items at means of transport, houses, buildings, gardens or compounds.
vii. Other offence which the law stipulates cannot he set in motion except on the basis of a complaint by the injured party.
B. No criminal complaint call be set in motion in relation to offences that took place outside Iraq except with the permission of the Minister of Justice.[14]
Article 4
A. If the aggrieved parties in the offences referred to in the previous Article are numerous, it is sufficient to have the complaint submitted by one of them.
B. In the case that there are numerous persons accused, and the complaint was submitted against one of them, it is considered to have been submitted against the other persons accused, except in the offence of adultery where the complaint is not set in motion against the alleged perpetrator unless it is also submitted against the adulterous husband or wife.
Article 5
If there is a conflict of interests between the injured party and the person representing him, or if he does not have anyone to represent him, the investigative judge or the court must appoint someone to represent him.
Article 6
A complaint, as detailed in Article 3 of this law, will no longer be accepted once three months have passed from the date when the aggrieved party became aware of the offence or from the disappearance of any compelling excuse which prevented the submission of the complaint; and the right to submit the complaint will be dropped in the event of the death of the aggrieved party unless the law stipulates to the contrary.
Article 7
If the aggrieved party passes away after submitting the complaint, this death will have no effect on the processing of the complaint.
Article 8[15]
If the law on setting in motion a case stipulates that a complaint must be submitted, no action may be taken against the perpetrator of the offence until the complaint has been submitted. The complainant is dismissed if, after the complaint is filed, it is not followed up by the complainant for three months without lawful excuse, and the judge will then dismiss the complaint and finally close the case.
Article 9
A. The submission of the complaint should include the claim for criminal justice which is a petition that penal measures be taken against the perpetrator of the offence and for the penalty to be imposed on him. The written complaint includes the claim for civil justice as long as the complainant does not declare otherwise.
B. The criminal court will not consider civil justice claims other than in accordance with criminal justice claims.
C. The person who submitted the complaint has the right to withdraw from it. If a number of persons submitted the complaint and some of them withdraw, this does not invalidate the rights of the others.
D. If a person who had the right to submit the complaint dies, the right to submit the case does not transfer to his heirs.
E. If there are many persons accused and the complaint against one of them is withdrawn, this does not extend to the others, unless the law stipulates otherwise.
F. If the plaintiff withdraws his complaint, he will, as a consequence, lose his right to criminal justice but will not lose his right to submit a civil case unless by his own declaration.
G. The withdrawal of a civil claim will not result in the loss of the right to submit a criminal claim except in circumstances stipulated by the law or by declaration of the plaintiff, and in any event does not affect the case of public justice.
H. Withdrawal of the complaint or from the civil case prohibits any claim for the restoration of the withdrawn right before any civil or penal court.
I. The withdrawal of the complaint by the plaintiff prohibits the criminal court from looking into the civil case but does not prevent the plaintiff from petitioning the civil court, unless he makes a declaration to that effect.
Chapter 1 - The civil plaintiff in and the person responsible under civil law for the actions of the accused
Article 10
A person who has suffered direct material or ethical damage from any offence has the right to bring a civil case against the accused and the person responsible under civil law for the actions of the accused, under the provisions of Article 9. The complaint is made by petition or by oral request, confirmed in the written record during the gathering of evidence or during the initial investigation or before the court which is already considering the criminal case, up to the issue of the definitive judgment. It is not permissible to raise it for the first time at the cassation stage.
Article 11
If the person who has suffered damage from the offense is not competent to conduct a lawsuit under civil law then someone must be appointed to represent him legally, and if someone cannot be found then the investigative judge or the court must appoint someone to take on the civil case in his place.
Article 12
If the accused is not fit to be tried under civil law, then the civil proceedings are lodged against any person representing him legally and, if no one is representing him, someone is appointed to represent him in accordance with Article 11.
Article 13
A civil case against those responsible under civil law may be brought either collectively or individually in accordance with criminal procedures.
Article 14
The person responsible under civil law for the actions or the accused has the right to intervene in criminal proceedings at any time before the judgment is issued, in the event that there is no civil claim.
Article 15
A. The accused or the person responsible for the actions of the accused under civil law has the right of objection before the criminal court against the intervention in the criminal proceedings of the civil plaintiff.
B. The civil plaintiff has the right to object to the intervention in the criminal proceedings of the person responsible under civil law.
Article 16
A. The court will make a judgement on objections submitted in accordance with Article 15 after hearing arguments from the opposing parties.
B. The court may issue a ruling that the civil plaintiff or person responsible for the actions of the accused may not intervene in the criminal proceedings, provided there are no grounds for doing so and no objections have been submitted.
C. If these objections are raised before the investigative judge they are forwarded to the relevant court, to be examined in conjunction with the criminal proceedings.
Article 17
The judgement of non-intervention of the civil plaintiff does not prevent the person responsible under civil law for the actions or the accused from referring to the civil courts.
Article 18
The civil plaintiff has the right to consult the civil court for a judgment on compensation for excess damage after the issuing of a definitive criminal judgment.
Article 19
If the civil court considers the progress of an examination required for judgment is being delayed by the criminal case, it will dismiss the case with the stipulation that the plaintiff retains the right of referral to the civil courts.
Article 20
In making a judgment on a civil case raised before the criminal court the measures prescribed in this law are to be followed.
Section 2 - Abandonment, suspension and termination of civil cases
Article 21
The civil plaintiff has the right to abandon his civil case under any circumstances. This abandonment will have no effect on the criminal proceedings except in circumstances stipulated by the law.
Article 22
The absence of the plaintiff or his representative, without an acceptable excuse, will be considered an abandonment of the criminal proceedings at the first court session after legal notification has been carried out.
Article 23
If the civil plaintiff abandons a case lodged before the criminal court he may lodge it before the civil court unless by his own declaration he renounces his rights so to do.
Article 24
If the civil plaintiff abandons his case, the person responsible under civil law for the actions of the accused is also removed, if his involvement in the case was based on the request of the civil plaintiff.
Article 25
A. If the civil plaintiff lodges his case with the civil court before the criminal proceedings have been lodged he may bring his civil case before the criminal court, on condition that the civil court be asked to drop the case. He will not then have the right to bring his case back before the civil court, unless the criminal court determines that he has such a right always provided he has not himself denounced the right.
B. If the civil plaintiff lodges his case with the civil court after lodging criminal proceedings he may not subsequently lodge it with the criminal court, unless he requests that the civil court drop the case.
Article 26
The civil court must suspend any decision on the case in order to await judgment in the criminal proceedings, on which the level of award in the civil case will be based. The civil court has the right to determine any urgent and precautionary measures as it sees fit.
Article 27
If the decision on a civil case is suspended in accordance with Article 26 and the criminal case is subsequently terminated, the civil court must proceed with the civil case and issue a judgment.
Article 28
If a criminal case is terminated or suspended for a legal reason before a decision has been reached, the civil plaintiff has the right to consult the civil court.
Article 29
The civil case will not be heard if it is lodged before the criminal courts after the expiry of the time period stipulated by law.
Section 3 - General Prosecution
Paragraphs 30 - 38[16]
BOOK TWO - Investigation of offences, collection of evidence
and initial investigation
Section 1 – Crime Scene officer[17]
Article 39
Crime scene officers are the following persons, within their areas of competence:
i. Police officers, police station commanders and sub-officers[18].
ii. Mayors of villages and of urban neighbourhoods - in respect of the notification of offences, the apprehension of suspects and the safe custody of persons who should be detained.
iii. Railway stationmasters or their deputies, train guards/conductors, port managers/harbourmasters, airport managers and captains of ships and aircraft and their deputies - in respect of offences committed within their areas of responsibility.
iv. Heads of government departments and official or semi-official establishments and agencies - in respect of offences committed within their areas of responsibility.
v. Public servants authorized to investigate offences and take appropriate action within the limits of the powers accorded to them by the relevant laws.
Article 40
A. Each crime scene officer acts within the bounds of his area of competence, under the supervision of the Public Prosecution and in accordance with the provisions of the law.
B. Crime scene officers are subject to the control of the investigative judge, who may request the superiors of such officers to look into any case where an officer acts in a manner inconsistent with his duties or is remiss or negligent in his work and to institute disciplinary proceedings against him, such proceedings being without prejudice to the officer's liability to criminal proceedings should he commit an act that constitutes an offence.
Article 41
Crime scene officers are authorized within their areas of competence to inquire into offences and to receive any statements and complaints that may be made in regard to these offences. They are required to assist the investigative judge, [judicial] investigators, police officers and sub-officers[19], to pass on to them any information concerning the offences that may come into their possession, to apprehend those who committed the offences and to deliver them to the appropriate authorities. They are also required to record all action taken in official reports signed by them, stating the time and place the action was taken, and to deliver immediately to the investigative judge all statements, complaints, reports and other documents and all impounded items and substances.
Article 42
Crime scene officers are required to use all possible means to preserve evidence of an offence.
Article 43
When a crime scene officer, within his area of competence as specified in Article 39, is informed or becomes aware that an offence has been committed in the presence of witnesses, he is required to notify the investigative judge and the Public Prosecution of the occurrence of the offence, to go immediately to the place where the offence occurred, to take down in writing a statement from the victim of the offence, to orally question the person about the accusation made against him, to impound any weapons and anything that may appear to him to have been used in the commission of the offence, to examine and preserve any material traces of the offence, to establish the status and whereabouts of the persons involved and or anything else that may assist in investigating the offence, to hear statements by any person who was present or that can obtained from other persons concerning the facts of the case or the perpetrator of the offence and to cause a written record of all such information to be duly made.
Article 44
When a crime scene officer goes to the place where a witnessed offence has occurred he may forbid those present to leave or move away from the scene of the offence until an official record has been made. He may also summon immediately any other person who may be able to supply information establishing the facts of the case; if any person refuses such summons the investigating officer shall note the refusal in the official record.
Article 45
The crime scene officer may request the assistance of the police if necessary.
Article 46
The crime scene officer's task ends when the investigative judge, [judicial] investigator or representative of the Public Prosecution arrives, except in regard to any matter for which they assign responsibility to him.
Section 2 - Notification of offences
Article 47[20]
1. Any person against whom an offence is committed and any person who learns that an offence has been committed in respect of which proceedings have been instituted without a complaint being submitted, or who learns that a suspicious death has occurred, may inform the investigative judge or the [judicial] investigator or the Public Prosecution or any police station.
2. If the complaint is about offences against the internal or external security of the state, crimes of economic sabotage and other crimes punishable by death, life imprisonment or temporary imprisonment and the informant asks to remain anonymous, and not to be a witness, the judge[21] has to register this with the notification in a special record prepared for this purpose, and conduct the investigation according to the rules, considering the information included in the notification without mentioning the informant’s identity in the investigative paper.[22]
Article 48
Any public servant who, in the course of performing his duties or as a consequence of performing his duties, learns that an offence has been committed or suspects that an offence has been committed in respect of which proceedings have been instituted without a complaint, and any person who has given assistance in his capacity as a member of the medical profession in a case where there are grounds for suspecting that an offence may have been committed us well as any person who is present when a felony is committed must immediately inform one of the persons specified in Article 47.
Section 3 - Investigations conducted by the Police
Article 49
A. Any policeman in charge of a police station receiving information that a felony or misdemeanour has been committed shall immediately record the informant's statement in writing and require the informant to append his signature. He shall then send a report of the matter to the investigative judge or [judicial] investigator. If the information he has received makes it clear that the felony or misdemeanour took place in the presence of witnesses then he shall take the action specified in Article 43.
B. If the information he has received makes it clear that an infraction has been committed he shall send a summary report of the offence to the [judicial] investigator or investigative judge. The report shall give the name of the informant, the names of witnesses and the section of the law that applies to the incident.
C. The policeman in charge of a police station must in every case enter in the station logbook a summary of the information received concerning an offence and the time at which the information was received.
Article 50
A. As an exception to the first sub-paragraph of Article 49, the policeman in charge of a police station shall conduct an investigation into any offence if he is instructed to do so by an investigative judge or [judicial] investigator or if he considers that referring the informant to an investigative judge or [judicial] investigator would delay necessary action and result in evidence of the offence being destroyed or lost, the course of the investigation being impaired or the suspect fleeing, provided that the officer submits the documentary record of the investigation to the investigative judge or the [judicial] investigator as soon as he has completed it.
B. In the circumstances specified in this Article and in Article 49, the policeman in charge of a police station has the powers of the [judicial] investigator.
Section 4 - The initial investigation
Chapter 1 - General provisions
Article 51
A. The initial investigation shall be conducted by investigative judges or by [judicial] investigators acting under the supervision of investigative judges.
B. In case of necessity and if an investigative judge is not available an immediate decision may be made or immediate action taken in the course of an investigation into a felony or misdemeanour, provided that the person responsible for the investigation lays the matter before any judge within the investigative judge's area of competence, or within all adjacent area, so that the judge may consider what action needs to be taken.
C. Any judge may conduct an investigation into a felony or misdemeanour that has taken place in his presence if an investigative judge is not available.
D. The relevant documents in the cases specified in sub-paragraphs B and C shall be submitted as quickly as possible to the investigative judge concerned and the decisions and action provided for in those two paragraphs shall be subject to the decision and action taken by the investigative judge.
E. The [judicial] investigator shall be appointed by order from the Minister of Justice[23], provided he possesses a recognized qualification in law or holds a recognized diploma from the legal department of the technical institutes. Police officers and sub-officers[24] and legal officers of the Ministry of Justice may be granted the powers of a [judicial] investigator by order from the Minister of Justice. [25][26]
F. No [judicial] investigator may perform the functions of his office for the first time unless he has passed a special course of the Judicial Institute of no less than three months if he obtained a recognized law degree or no less than a full calendar year if he holds a recognized diploma from the legal department of the technical institutes and he has sworn the following oath before the President of the Court of Appeal:
"I swear by Almighty God that I shall perform the functions of my office with justice and shall apply the law faithfully"
Article 52
A. The investigative judge shall conduct the investigation into all offences in person or by means of [judicial] investigators. He may authorize any crime scene officer to carry out any particular action on his behalf.
B. The scene of the incident shall be examined by the [judicial] investigator or judge so that he may take the action specified in Article 43, record the nature of any material trace or evidence of the offence and of the injury sustained by the victim, note the apparent cause of any death that has occurred and arrange for a sketch-map of the scene of the incident to be made.
C. If the investigative judge is notified of an offence that has occurred in the presence of witnesses he must, whenever possible and without delay, go to the scene of the incident in order that he may take the action specified in sub- paragraph B and notify the Public Prosecution accordingly.
Article 53
A. The legal jurisdiction of the investigation shall be determined by the place where the whole of the offence or part of it or an act supplementary to it was committed, or where any result consequent upon it occurred, or where an act that forms part of a composite, ongoing serial, or customary, offence was committed. It may also be determined at the place where the victim was situated or where money in respect of which the offence was committed was found after having been conveyed there by the offender or by a person cognisant of the offence.
B. If the offence took place outside Iraq the investigation into it shall he conducted by an investigative judge appointed for the purpose by the Minister of Justice.[27]
C. If it is evident to the investigative judge that the offence to be investigated is outside his area of competence then he may refer the papers on the case to an investigative judge who is competent under the provisions or sub- paragraph A.
D. If the investigative judge to whom the papers on the case are referred considers that he is not competent to investigate the offence he must submit the matter to the Court of Cassation, stating the grounds upon which the Court should issue a decree appointing an investigative judge with the requisite competence as a matter of urgency. He himself must continue with the investigation until such time as the Court of Cassation decides the matter.
E. Measures and decisions by the investigative judge shall not be invalid by virtue of their having been taken contrary to the provisions of sub-paragraph A.
Article 54
A. If a complaint or allegation against a suspect is lodged with two or more of the competent authorities investigating the offence, the papers on the case must be passed to the authority with which the complaint or allegation was lodged first.
B. If there are several suspects for an offence and a complaint or allegation against some of them has been lodged with one competent investigating authority and against others with another such authority, the papers on the case must be passed in the authority with which the complaint or allegation was lodged first.
Article 55
A. If there is a conflict of jurisdiction between two or more investigative authorities, the conflict shall be referred to the Court of Cassation, which shall issue a decree appointing the competent authority.
B. It is permissible for the case to be moved from the jurisdiction of one investigative judge to the jurisdiction of another investigative judge by order of the Minister of Justice[28] or by a decision by the Court of Cassation or the Felony Court with its area if the security situation requires it or if the transfer would help to establish the truth.
Article 56
A. The investigative judge may move to any other place within his area or jurisdiction to conduct any part of his investigation, if such a move is required in the interest of the investigation, he may move to any place outside his area of jurisdiction if the exigencies of the investigation so require. In this case he shall have powers of apprehension, arrest and search, and authority to hear witnesses, to question suspects and persons connected with the incident under investigation and to release persons with or without bail, provided that he notifies the investigative judge of the district of the measures he has taken in that district.
B. If there is a need to conduct part or the investigation in an area outside the judge’s area of jurisdiction he may authorize the investigative judge of that area to conduct that part of the investigation on his behalf, provided that the matters he wishes to be investigated are specified in the decree authorizing that investigative judge to act on his behalf.
C. The judge so authorized may, if he fears that there is a shortage of time, take any action related to the matter in which he has been deputed to act or which he considers necessary to establish the truth.
Article 57
A. An accused person, a plaintiff, a civil plaintiff, a person responsible in civil law for the actions of the accused and their representatives may attend the investigation while it is in progress. The judge or the [judicial] investigator may prohibit their attending if the matter in hand so requires, for reasons that he shall enter in the record, with the proviso that they shall be granted access to the investigation as soon as the need to prohibit their attendance ceases and that they shall not have the right to speak unless permitted to do so and that if permission is withheld a note to that effect shall he entered in the record of the investigation.
B. Any person who makes a request may receive a copy of the papers unless the investigative judge considers that to provide them would affect the course or confidentiality of the investigation.
C. No person other than those previously mentioned may attend the investigation unless the investigative judge gives permission.
Chapter 2 - Hearing witnesses
Article 58
An investigation is to commence with the recording in writing of the deposition of the plaintiff or informant, then of the testimony of the victim and other prosecution witnesses and of anyone else whose evidence the parties wish to be heard, and also the testimony of any person who comes forward of his own volition to provide information, if such information will be of benefit to the investigation, and the testimony of any other persons who the investigative judge or [judicial] investigator learns is in possession of information concerning the incident.
Article 59
A. Witnesses are to be summoned by the investigative judge or [judicial] investigator to attend during the investigation by means of a writ of summons which will be served upon them by the Police or by an official of the department issuing the writ or by a village or district mayor or by any other person authorized by law. Writs of summons addressed to persons employed in government establishments or agencies or in official or semi-official departments may be served on them by their departments.
B. In the case of offences committed in the presence of witnesses the witnesses may be summoned orally.
C. An investigative judge may issue an order for the arrest of any witness who fails to attend in due time and for him to be compelled to attend in order to give evidence.
Article 60
A. Each witness is to be asked to state his full name, occupation, place of residence, relationship to the accused, to the victim, to the complainant and to the civil plaintiff.
B. Each witness who has attained the age of fifteen years is to be required, before he gives evidence, to swear on oath that the evidence he will give shall be the truth. Any person who has not attained the aforementioned age may be heard for the purpose of evidential inquiry without being on oath.
C. A complainant and a civil plaintiff may be heard as witnesses and may take the oath.
Article 61
A. Testimony is to be given orally but permission may be given for the witness to refer to written notes if the nature of the evidence so requires.
B. Any person who is unable to speak may give his evidence in writing or in conventional sigh language if he is unable to write.
C. If a witness does not understand the language in which the investigation is being conducted, or is deaf or dumb, a person must[29] be appointed to translate what the witness says, or interpret the witness's sign language, after taking an oath that he will translate or interpret truthfully and faithfully.
D. In the case of felonies the judge shall record important evidence in writing.
Article 62
The evidence of each witness shall he heard separately but witnesses may confront each other and the accused.
Article 63
A. Statements by a witness shall be entered in the record or the investigation without any erasures, crossings out, amendments or additions to the text, which when complete shall be read through and signed by the witness, or if the witness cannot read shall be read out to him and then signed by the person who entered it in the record. No correction or alteration shall be accepted unless signed both by the investigative judge or [judicial] investigator and by the witness.
B. The accused and the other parties may make observations on evidence given and may ask for a witness to be questioned again, or for other witnesses to be questioned about other facts to which they refer, unless the investigative judge considers that a response to the request would be impossible or impracticable or would delay the investigation unjustifiably or would pervert the course of justice.
Article 64
A. No question may be addressed to a witness without the permission of the investigative judge or [judicial] investigator and no questions may be put to a witness that are not relevant to the case or which impinge upon others. A witness may not be addressed in a declaratory or insinuating manner and no sign or gesture may be directed at him that would tend to intimidate, confuse or distress him.
B. A witness may not be prevented from giving evidence that he wishes to give and may not be interrupted while giving it, unless he speaks at undue length on matters not relevant to the case or on matters that impinge on others, offend common decency or infringe security.
Article 65
The investigative judge or [judicial] investigator must note in the record of the investigation anything he observes about a witness that may affect his fitness to give evidence or to sustain the process of giving evidence because of his age or physical, mental or psychological condition.[30]
Article 66
If so requested by a witness the investigative judge shall assess the travel expenses and other necessary expenditure incurred by the witness, as well as any wages he has been deprived of, as a result of his attendance away from his normal place of residence, and shall order their reimbursement from Treasury funds.
Article 67
If the witness is ill or if there is anything else which prevents him from attending then the investigative judge or [judicial] investigator shall go to the witness's current place of residence in order to receive and record his evidence.
Article 68
A. No married person shall he a witness against his or her spouse unless he or she is accused of adultery or an offence against the spouse's person or properly.
B. One of the persons aforementioned may be a defence witness for the other and any part of his or her evidence leading to the conviction of the accused shall be deemed to be invalid.
Chapter 3 - Appointment of experts
Article 69
A. The [investigative] judge or [judicial] investigator may, of his own accord or based on the request of the parties, appoint one or more experts to offer opinions on matters connected to the offence being investigated.
B. The investigative judge or [judicial] investigator may ask the expert to attend when called.
C. The [investigative] judge may estimate the wages of the expert to be borne by the treasury as long as the price is not unreasonably high.
Article 70
The investigative judge or [judicial] investigator may compel the plaintiff or accused in a felony or misdemeanour case to cooperate in physical examination or the taking of photographs, or through fingerprinting or analysis of blood, hair, nails, or other items for the purposes of the investigation. [31]Physical examination of a female should be conducted by another female.
Article 71
The investigative judge may, if necessary, give permission for the exhumation of a corpse by an expert or specialist doctor, in the presence of those with a connection who are able to attend, in order to establish the cause of death.
Chapter 4 - Search
Article 72
A. The searching of any person or entry of any house or any business premises for the purposes of a search are not permitted other than in cases stipulated by law.
B. The search should be undertaken by the investigative judge, [judicial] investigator or a member of the police force by order of the judge, or anyone granted authority by the law.
Article 73
A. The searching of any person or entry of a house or other business premises for the purpose of a search is not permitted unless based on an order issued by the competent legal authority.
B. It is permitted to search any location without prior permission in the event of a request for assistance from a person inside the location, or in the case of fire, drowning or other similar case of necessity.
Article 74
If it appears to the investigative judge that a particular person is holding items or papers which would inform the investigation, he may issue a written order for the items to be submitted. If he believes that the order will not be obeyed or is worried that the items will be removed, he may conduct a search procedure in accordance with the paragraphs below.
Article 75
The investigative judge may order the searching of any person or house or any other place owned by the person accused or committing an offence if the search may reveal the presence of documents, weapons, tools or persons who have had a part in the offence or are held against their will.
Article 76
If it appears to the investigative judge, based on information or an indication, that a residence or other place is being used to keep stolen money, or that it contains items involved in an offence, a person who is being held against his will or a person who has committed an offence, he may order the search of that location and take legal measures in relation to the money or persons, whether or not the location is owned by the accused.
Article 77
The person undertaking the search may search any individual at the search site on the basis that such individual may be hiding something for which the search is being conducted.
Article 78
A search is not permissible except when looking for the items to which the search relates. If the search reveals the existence of another item indicating an offence in itself or which helps in the detection of another offence, it may be seized.
Article 79
The [judicial] investigator or crime scene officer may search the person arrested in cases in which the arrest is permitted by law. In the event of the deliberate commission of a felony or misdemeanour which has been witnessed, he may inspect the house of the accused, or any place in his possession, or seize persons, papers or items which inform the investigation if there is a strong indication of their presence.
Article 80
If a female is to be searched, the search must be conducted by a female appointed for the purpose, with the identity or the searcher being recorded in the record.
Article 81
The person to be searched, or whose property is to be searched, in accordance with the law, must allow the persons searching to perform their duty. If he prevents the search, the person undertaking the search must carry it out through the use of force or may request police assistance.
Article 82
The search should take place in the presence of the accused and the owner of the house or place of business, if appropriate, and in the presence of 2 witnesses, along with the mayor or his appointee. The person conducting the search is to prepare a record in which are recorded the procedures and time of the search along with the location, items seized with descriptions, names of those present in the location as well as a note of the accused and those connected with the case and the names of witnesses. This record should be signed by the accused, the owner of the place, the person who carries out the search and those present. Any refusal to sign should he noted in the record. The accused should be given a copy or the record on request, as may those connected to the case, and copies of letters or documents should he given to their owners, if that is not detrimental to the investigation.
Article 83
The person carrying out the search must place seals on all locations and items containing evidence needed for the investigation, which should be protected. It is not permissible to break this seal except by order of the investigative judge and in the presence of the accused and owner of the property and the person who checked the goods. If one of them is unable to attend or send a delegate, it is permissible to break the seal in his absence.
Article 84
A. If, amongst the articles in the location being searched, there are letters, documents or other personal items, it is not permissible for anyone to read them other than the person conducting the search, the investigative judge, the [judicial] investigator and a representative of the Public Prosecution.
B. If the items seized are papers which have been sealed in any way, it is not permissible for any person other than the investigative judge or the [judicial] investigator to open them and read them. This reading should take place in the presence of the accused and those connected with the location. If the papers have no connection with the case, they should be returned to the owner and not made public.
Article 85
Any person conducting a search outside the area of jurisdiction of the judge who issued it, must, before the search is carried out, refer to the investigative judge of the area in which the place to be searched is located. In urgent cases he may carry out the search immediately and then inform the investigative judge of the area.
Article 86
Objections to the search procedures should be submitted to the investigative judge who must make a quick decision.
Section 5 - Methods or Compulsion to Attend
Chapter 1 - Summons
Article 87
The court, investigative judge, [judicial] investigator or policeman in charge of a police station may issue a summons to the accused or to a witness or to anyone connected with the case. There should be two copies of the document on which are recorded the person issuing the summons and the person summoned, along with his place of residence, the time and place of the requested attendance, the type of offence being investigated, and the legal paragraph on which it is based.
Article 88
The person summoned notes the contents of the summons and signs the original document with his signature or finger print. The other copy is handed to him and an indication is made on the original document that notification has been carried out, which includes a statement of the time and date of notification. If the person summoned will not accept the summons or is unable to sign, the person tasked with notification must ensure that he is informed of the contents in the presence of two witnesses, and leave him the other copy, after noting this on both copies, followed by his signature and those of the two witnesses.
Article 89
A. If the person summoned is not present in his home or place of work and it is found that he is present in the country, the summons can be presented to his spouse, other relatives or relatives by marriage living with him, a person working for him or an employee at his place of work, who should sign the original copy and pass him the copy. If he does not, or cannot, sign, the procedures given in Article 88 above should be followed.
B. If the person tasked with notification does not find any of the persons mentioned above, he pins a copy of the paper on the outer door of the residence or place of work, after signing in front of witnesses, explaining the steps taken on both the copy and the original.
Article 90
The notification of persons outside Iraq and of corporate bodies is done through use of a written summons in accordance with the procedures outlined in the Code for Civil Procedures.
Article 91
A summons to a person outside the geographical jurisdiction of the authority issuing that summons is sent to an authority within the geographical jurisdiction for notification in accordance with the rules stated above.
Chapter 2 - Arrest
Article 92
Arrest or apprehension of a person is permitted only in accordance with a warrant issued by a judge or court or in other cases as stipulated by the law.
Article 93
The arrest warrant should contain the full name of the accused, with his identity card details and physical description if these are known, as well as his place of residence, his profession, and the type of offence to which the warrant relates, the legal provision which applies and the date of the warrant. It should be signed and stamped by the court. In addition to the details given, the warrant should contain an instruction to members of the police force to arrest the accused, by force if he will not come voluntarily.
Article 94
A. The arrest warrant is valid in all areas of Iraq and must be executed by anyone to whom it is sent. It remains current until it has been executed or cancelled by the party issuing it or by a higher authority with legal right to do so.
B. The wanted person must be informed of the warrant which has been issued for his arrest and then be brought before the party who issued the warrant.
Article 95
The judge who issued the arrest warrant must record on it the duty to release the person arrested if he makes a written pledge to attend at a specific time, with or without bail as specified by the judge, or with a pledge accompanied by a financial deposit to the treasury for an amount specified by the judge. When the person arrested gives this pledge or sum of money he must be released. The persons to whom the warrant has been sent must inform the judge of steps taken.
Article 96
If a person who should have had a summons or arrest warrant issued against him, appears before the judge or [judicial] investigator, the judge must ask him for a written pledge, with or without bail, saying that he will attend at the required time. If he does not attend, and does not have a legal excuse, the judge must issue an arrest warrant.
Article 97
If the person does not attend after being summoned, without a legal excuse, or if there is a fear that he will abscond or influence the investigation, or if he does not have a specific place of residence, the judge may issue a warrant for his arrest.
Article 98
Any judge may issue an arrest warrant against any person who has committed an offence in his presence.
Article 99
In the case of an offence punishable by a period of detention exceeding one year, the accused is called to attend by the issue of an arrest warrant against him, unless the judge sanctions the issue of a summons. However, the issuing of a summons for an offence punishable by death or life imprisonment is not permitted.
Article 100
If the arrest warrant is to be executed outside the area of jurisdiction of the judge who issued it, the person charged with its execution should present it to the appropriate judge in the area for permission to execute it, unless he believes that the opportunity to arrest the person will be missed.
Article 101
A. If the arrest warrant is executed outside the jurisdiction of the judge who issued it, and if there is no permission to release the accused by pledge or bail as stipulated in Article 95, the judge must detain him and send him under escort to the judge who issued the warrant.
B. If the bail put forward by the accused is not accepted, or if he is unable to make the pledge as stipulated in Article 95, the judge must detain him and send him under escort to the judge who issued the warrant.
Article 102
A. Any person may arrest any other person accused of a felony or misdemeanour without an order from the authorities concerned, in any of the following cases:
i. If the offence was committed in front of witnesses.
ii. If the person to be arrested has escaped after being arrested legally.
iii. If he has been sentenced in his absence to a penalty restricting his freedom.
B. Any person may, without an order from the authorities concerned, arrest any other found in a public place who is in a clear state of intoxication and confusion and has created trouble or has lost his reason.
Article 103
Any policeman or crime scene officer must arrest any of the following if they encounter them:
i. Any person against whom an arrest warrant has been issued by the competent authorities;
ii. Any person carrying arms, whether openly or concealed, violating the provisions of law;
iii. Any person thought, based on reasonable grounds, to have deliberately committed a felony or misdemeanour and who has no particular place of residence;
iv. Any person who impedes a member of the court or public official from carrying out his duty.
Article 104
All individuals must, if able, cooperate with the authorities concerned in an arrest being conducted in accordance with the law when asked to lend assistance.
Article 105
Any person who is sent an order to arrest someone, and any person charged with making an arrest in a witnessed offence must pursue the accused in order to arrest them, and if the presence of the accused is in doubt, or he hides somewhere, persons in that place should be asked to hand him over or to offer all possible facilities to enable his arrest. If this is not allowed, the person making the arrest may enter this place or any place in which the accused has taken refuge, by force, in order to arrest him.
Article 106
Any person arresting someone in accordance with paragraphs 102 and 103 must bring the person arrested to the nearest police station or hand him over to a member of the judicial authorities, who must hand him over to the police, and if comes to the attention of an official in the police station that a warrant has been issued for the arrest of this person, he must bring him before the person who issued the warrant. If it is clear that he has committed an offence, the police official must take legal steps in this regard, and if it is clear that he is not guilty of the charge, he must be released immediately.
Article 107
Anyone who arrests someone in accordance with the law must take from him any weapons he is carrying and hand them over immediately to the person issuing the arrest warrant or to the nearest police station or to any member of the police.
Article 108
If the accused resists arrest or tries to escape, the person arresting him in accordance with the law may use reasonable force to enable him to carry out the arrest and to move him without allowing him to escape, provided that this does not lead to the death of anyone who has not committed an offence for which the death penalty or life imprisonment is prescribed.
Chapter 3 - Detention and release of the accused
Article 109[32]
A. If the person arrested is accused of an offence punishable by a period of detention exceeding 3 years or by imprisonment for a term of years or life imprisonment[33], the judge may order that he be held for a period of no more 15 days on each occasion or order his release on a pledge with or without bail from a guarantor, and that he attend then requested if the judge rules that release of the accused will not lead to his escape and will not prejudice the investigation.
B. If the person arrested is accused of an offence punishable by death the period stipulated in sub-paragraph A may be extended for as long as necessary for the investigation to proceed until the investigative judge or criminal court issues a decision on the case on completion of the preliminary or judicial investigation or the trial.
C. The total period of detention should not exceed one quarter of the maximum permissible sentence for the offence with which the arrested person is charged and should not, in any case, exceed 6 months. If it is necessary to increase the period of detention to more than 6 months, the judge must submit the case to the Felony Court to seek permission for an appropriate extension, which must not itself exceed one quarter of maximum permissible sentence, or he should order his release, with or without bail, subject to paragraph B.
Article 110
A. If the person arrested is accused of an offence punishable by a period of detention of 3 years or less or by a fine, the judge must release him on a pledge with or without bail unless he considers that such a release will obstruct the investigation or lead to the accused absconding.
B. If the person arrested is accused of an infraction, he may not be held unless he has no particular place of residence.
Article 111
The judge who issued the decision to detain the accused may decide to release him on a pledge, with or without bail, before the end of the period of detention stipulated in sub-paragraph B of Article 109, and he may return him to the holding detention if necessary for the investigation.
Article 112
A [judicial] investigator in locations which are distant from the office of the judge should hold those accused of felonies. In the case of misdemeanours, they should release the accused on bail and must, in all cases, report the matter to the judge as quickly as possible, and carry out whatever order is prescribed.
Article 113
An order to hold a person should include the full name of the person to be held, the paragraph of law under which he is held, the date of the start of the detention and the date of its expiry. It should be signed by the issuing judge and stamped by the court.
Article 114
A. The amount of the pledge or bail is set according to the conditions of each case, and it must be appropriate for the type of offence and the circumstances of the accused.
B. Bail is accepted if the judge or [judicial] investigator or policeman in charge of a police station is satisfied that it can be paid.
C. Bail money is accepted from the accused or bailsman in cash and deposited in the court treasury or police station.
Article 115
When the pledge, bail or cash sum is submitted, the accused is released if he is not being held for another offence.
Article 116
If the bailsman dies or if the bail is broken, because the bailsman is unable to pay or has been deceitful, or if there appears to be a mistake in the bail, or there is another reason that the bailsman is not able to fulfil the bail, the judge may issue an arrest warrant against the accused or another bail order, and if this too remains unpaid, he is detained.
Article 117
The bailsman may request exemption from the bail if the person bailed appears in front of the judge or is handed over to a police station. At the time, the judge will issue decision to cancel the bail and may order the detention of the accused if he does not pay the bail.
Article 118
The bail or pledge is exempt from taxes.
Article 119
A. If the accused does not fulfil his pledge, or the bailsman does not pay the bail, he is transferred to the Misdemeanour Court on a decision from the investigative judge or criminal court, so that the sum which should have been paid can be collected. The court may decide to take all or part of the money; depending on the circumstances of the case, may excuse the accused or bailsman if there were reasons of necessity for the lack of payment; or may make an order either that the money be paid in instalments over a period of no longer than a year or that the sum deposited in cash in accordance with Article 114 be confiscated, or that the accuser's possessions be seized and sold in accordance with the Law of Implementation, based on the report presented by the court to the person in charge of the implementation, with the sum specified taken from the price achieved, due regard being given to the provisions of other laws specifying items which may not be seized and sold.[34]
B. If the sum raised by the sale of possessions is not sufficient to pay the due sum, and there are no more goods to be seized, or if the issue of a decree to obtain the due sum is forestalled by a statement of settlement which is acceptable, the court may decree a period of detention not exceeding 6 months.
C. The money seized or realized from sale of the seized goods is confiscated and paid to the treasury.
D. If the sum deposited is not confiscated by the court because of an infraction of the pledge or bail, it returns to the owner after a verdict of not guilty or not liable, discharge of the accused or definitive rejection of the complaint against him.
Article 120
A. If the accused dies, procedures against him and against the bailsman for any infringement of the pledge or bail are stopped.
B. If the bailsman dies, procedures against him for any violation of the bail are stopped.
C. Procedures for the seizure and sale of goods and payment by instalments are stopped in the situations mentioned in sub-paragraphs A and B above, and there is no need for the estate to pay the money not recovered.
Chapter 4 - Seizure of possessions of an accused person who has absconded
Article 121
A. If an arrest warrant issued against the accused for the commission of a felony is not executed, the investigating judge and criminal court may issue an order for the seizure of the moveable and immoveable property of the accused. After execution, papers are immediately sent to the Court of Felony, and if supported by the court, the authorities who decided on the detention will issue a statement, published in the local newspapers, on the television and using other methods of publication as appropriate, which states the name of the accused, the offence of which he is accused and the property which has been seized. It will ask him to give himself up to the nearest police station within 3 days. It will also ask that any person with knowledge of the location of the accused inform the nearest police station. If the Court of Felony does not support it, the seizure is cancelled. If the decree of seizure was issued by the Court Felony, it is implemented, and the statement is issued without need for approval from any other authority.
B. If the accused does not give himself up within the period stipulated, the authorities which issued the decree of seizure will deposit moveable assets with the judicial guard for safekeeping and they will be administered under his supervision. The immoveable assets will be handed over to the Office for Confiscated Property to administer, in its capacity as property with an absentee owner. The property will remain confiscated in this way until the death of the accused is proven; he is sentenced or proved guilty or not liable; he is discharged; or the complaint against him is dropped. At that point, the property will be returned to him or whoever is the rightful owner.
C. If the property seized will deteriorate quickly or is expensive to maintain, or if the authorities issuing the decree of seizure decide to sell it, it is sold in accordance with the Law of Implementation based on a memo sent to the person in charge of implementation.[35]
D. If the accused gives himself up or is arrested, either the seized property or its value is returned in full.
E. Any person to whom an accused person who has absconded owes money on a legal basis, shall be paid monthly from the seized assets at the same rate as payment was being made before the seizure, by decree of the authorities which issued the decree of seizure.
Article 122
If a person applies to the authorities issuing the decree of seizure, claiming ownership of the seized items, and presents sufficient proof, the authorities will hand over the items to him. If his request is rejected, he has the right to make a claim in a civil court or use the legal appeal process against the decision.
Chapter Five - Questioning of the accused
Article 123[36]
A. The investigative judge or [judicial] investigator must question the accused within 24 hours of his presentation[37], after proving his identity and informing him of the offence of which he is accused. His statements on this should be recorded, with a statement of evidence in his favour. The accused should be questioned again if necessary to establish the truth.
B. Before questioning the accused the investigative judge must inform the accused that:
i) he or she has the right to remain silent and no adverse inference may be drawn from the accused’s decision to exercise that right;
ii) he or she has the right to be represented by an attorney, and if he or she is not able to afford representation, the court will provide an attorney at no expense to the accused;
C. The investigative judge or [judicial] investigator must determine whether the accused desires to be represented by an attorney before questioning the accused. If the accused desires an attorney, the investigative judge or [judicial] investigator shall not question the accused until he or she has retained an attorney or until an attorney has been appointed by the court.
Article 124
The accused has the right to make his statement at any time after listening to the statements of any witness, and to discuss it or to request that he is summoned for this purpose.
Article 125
If it becomes clear that the accused is a witness against another accused, his testimony is recorded and the two cases are separated.
Article 126
A. The accused does not swear the oath unless acting as a witness for other accused persons.
B. The accused is not required to answer any of the questions he is asked.
Article 127
The use of any illegal method to influence the accused and extract an admission[38] is not permitted. Mistreatment, threats, injury, enticement, promises, psychological influence or use of drugs or intoxicants are considered illegal methods.
Article 128
A. Statements of the accused are recorded in the written record by the judge or [judicial] investigator and signed by the accused and the judge or [judicial] investigator. If the accused is unable to sign, this should be recorded on the written record.
B. If the statement of the accused includes an admission to the commission of an offence, the judge must record the statement himself, and read it back after a period of time. The judge and accused must then sign. If the accused would like to write down his statement in his own hand, the judge must enable him to do this, but it must be in the presence of the judge who must sign it, along with the accused, and after recording this in the written report.
C. Testimony which the accused asks to present in his defence should be recorded in the written report along with investigation of other proof presented by him, unless the judge decides not to grant the accused's request, because he believes it be an unjustified attempt to impede the investigation, or to mislead the judge.
Article 129
A. The investigative judge may offer immunity with the agreement of the Felony Court, for reasons recorded in the record, to any person accused of an offence, in order to obtain his testimony against others involved in its commission, on condition that the accused will give a full and true statement. If he accepts the offer, his testimony is heard and he remains an accused person until a decision on the case is issued.
B. If the accused does not submit a full and true statement, whether through deliberate concealment of any important issue or through false statements, he loses his right to immunity by decree of the criminal court, and procedures are taken against him for the offence for which he was offered immunity or any other related offence. His statements are used as evidence against him.
C. If the Felony Court finds that the statement given by the accused who has been offered immunity is full and true, then it will halt permanently legal proceedings against him and release him.
Chapter 6 - Decisions of the judge after the end of the investigation
Article 130
A. If the investigative judge finds that the action is not punishable by law or that the complainant has withdrawn the complaint, or that the offence is one over which he has no authority without reference to the judge, or that the accused is not legally responsible because he is a minor, he issues a decision rejecting the complaint and closing the case file definitively.
B. If the act is punishable by law and the investigative judge finds that there is sufficient evidence for a trial, a decision is issued to transfer the accused to the appropriate court. If there is insufficient evidence he is not transferred, an order is issued for his discharge and the case file is closed temporarily, with a statement containing the reason for the closure.
C. If the investigative judge finds that the perpetrator is unknown or that the incident was an act of God, he issues a decision to close the case temporarily.
D. An accused who has been detained will be released once a decision to reject the case or to discharge him has been issued.
E. The investigative judge informs the Public Prosecution when the decision is issued in accordance with this paragraph.
Article 131
A decision of transfer should list the name of the accused, his age, profession, place of residence and the offence of which he is accused as well as the time, date and location of its occurrence and the Article of the law which applies, the name of the victim and the evidence obtained, along with the date of issue of the decision, signed by the investigative judge and stamped by the court.
Article 132
A. If several offences are attributed to the accused, a single case is brought against him in the following circumstances:
i. If the offences resulted from one action;
ii. If the offences resulted from actions linked to each other and for a common purpose;
iii. If the offences are of the same type and are committed by the same accused person against the same victim, even if they occur at different times;
iv. If the offences are of the same type and occurred within one year against different victims, on the condition that there are no more than 3 victims for each case.
B. The offences are considered of the same type if they are punishable by the same type of penalty as stipulated by the same paragraph of the law.
Article 133
A single case is brought as stipulated in Article 132 if there are several accused, whether as principals or accessories.
Article 134
A. A person accused of a felony is transferred to the Court of Felony for a non-summary case. A person accused of a misdemeanor is transferred to the Court of Misdemeanor for a non-summary case if the penalty is a term of detention exceeding three years, or otherwise for a summary or non-summary case.
B. A person accused of an infraction can be transferred to the Court of Misdemeanor on a decision from the [investigative] judge or on an order from the [judicial] investigator for a summary case.
C. The statement[39] of the accused must be recorded before issue of the decision to transfer the case in accordance with sub-paragraph B, and an investigation of the infraction is ordered by the investigative judge.
D. With the exception of the provisions in sub-paragraphs B and C, the investigative judge must make an immediate decision on infraction cases in which there is no claim for compensation or return of property, without taking a decision to transfer the case to the Court of Misdemeanors. Any sentence of detention shall not be carried out until a degree of certainty is obtained.[40][41]
Article 135
If the accused does not appear before the investigative judge or [judicial] investigator, and is not arrested despite the use of methods of compulsion as stipulated in this law, or if he escapes after arrest or detention, and if there is sufficient evidence for a transfer to court, the investigative judge issues a decision of transfer to the court responsible in order for a trial to be conducted his absence.
Article 136
A. Transfer of the accused for trial at criminal courts stipulated in this code is not permitted except with permission from the Minister of Justice[42], for offences relating to the external or internal security of the state or involving insulting the government, ministers, representative bodies, armed forces, symbols of the state or its work, foreign nations, international organizations and their heads, representatives, work or symbols, and offences occurring outside Iraq which are punishable under Iraqi law.
B. With the exception of infractions punishable by the amended Traffic Code number 48 of 1971, and related statements, the transfer of the accused for trial in an offense committed during performance of an official duty, or as a consequence of performance of this duty is possible only with permission of the minister[43] responsible, in accordance with the stipulations of other codes.[44]
C. The transfer of the accused for trial before the criminal court is not permissible in a case of false testimony, false information or provision of false evidence except with the permission of the court in which the offence took place or where the official who witnessed the offence is employed. The decision in this case is subject to appeal at the Court of Cassation within 30 days, starting from the day following the issue of the decision, unless the decision has been issued by the Court of Cassation, in which case it is final.
BOOK THREE - Courts
Section 1 - Types of Penal Court and their jurisdictions
Article 137
A. Penal courts are the Court of Misdemeanour, Court of Felony and Court of Cassation.[45] These courts have jurisdiction to consider all criminal cases with a few special exceptions.[46]
B. Civil government officials who do not have authority, may be granted judicial authority for misdemeanours by decree of the Minister of Justice[47] based on a proposal from the minister responsible for the implementation of penal authorities stipulated in the relevant laws.[48]
Article 138
A. The Court of Misdemeanour has jurisdiction in cases of misdemeanours and infractions and can be authorized to give rulings in cases involving only misdemeanours or only infractions.
B. The Court of Felony has jurisdiction to rule on cases of felonies and to review the cases of the other offences stipulated by law.[49]
C. The Court of Cassation has jurisdiction to review provisions and rulings issued on felonies, misdemeanours[50] and other cases stipulated by law.
Article 139
A. If, either before or after a judicial investigation (or after a trial, in connection with a case transferred in a non-summary form) the Misdemeanour Court having examined the papers believes that the ruling in the penal case is outside its jurisdiction and within the jurisdiction of the Felony Court, then it shall rule that the accused person be transferred to the Felony Court. If the Felony Court finds that the ruling in the case is within the jurisdiction of the Misdemeanour Court, it may either rule on the case or return it to the Misdemeanour Court.
B. If the Felony Court finds that the ruling in the case referred to it from the investigative judge is within the jurisdiction of the Misdemeanour Court, it may decide on it or transfer the accused person to the Misdemeanour Court.
C. A decision of the Felony Court to transfer or return is legally binding.
Article 140
If it becomes clear to the Court of Misdemeanours that the offence on which the accused is being tried is connected to another case on which the accused is being tried in another penal court, it must transfer the accused to this court either before or after charging him with the related offence. A Court of Felony would follow the same transfer procedure from one Court of Felony to another.
Article 141
The provisions of Articles 53, 54 and 55 apply in deciding on territorial jurisdiction for trial and in any dispute over territorial jurisdiction between criminal courts.
Article 142
A case may be transferred from the jurisdiction of one penal court to the jurisdiction of another penal court of the same level by order of the Minister of Justice[51] or decision from the Court of Cassation or Court of Felony within its region, on grounds of security or if the transfer assists in the uncovering of the truth.
Section 2 - Appearance in court of accused and other litigants
Article 143
A. The court, on receipt of the case file, must set a date for the trial and inform the Public Prosecution, the accused and those with any connection and any of the witnesses who are to testify, by means of a written summons, at least one day before the trial in the case of an infraction, three days before for a misdemeanour and 8 days before for a felony. Informing the accused's attorney of the order to attend does not dispense with the need to inform the accused.
B. The summons to attend contains the name of the person to be notified and include his role in the case, the names of the accused and victim, the court, case number type of offence, the legal paragraph applicable and the time when they must appear in court.
C. If it becomes clear, once the notification has been issued, that the accused has absconded, a summons or arrest warrant is pinned up at his place of residence if known, published in two local newspapers and announced on the radio or television in the case of significant felonies or misdemeanours, in accordance with a decision by the court. An appointment is set for the trial within a period of no less than one month from the last date of publication in the newspaper for a misdemeanour or an infraction and two months for felonies.
D. Other than sub-paragraph C of this article, if the notification proved that the person accused of a crime involving the death penalty has absconded, the arrest warrant issued against him/her should be left for six months at his or her place of residence (if it is known), or should be posted on notice boards of both the court which issued the warrant and the police station in charge of investigating the case. The concerned court shall order that the accused be prevented from travelling and attach his or her movable and immovable properties and shall ask the accused to surrender himself or herself to it or any police station. The court shall determine an appointment to hold the trial no less than two months after completing all the aforementioned procedures and shall inform all concerned authorities.[52]
Article 144[53]
A. The Head of the Court of Felony appoints a attorney for the accused in felonies[54] if he has not appointed one and the court sets remuneration for the attorney during judgement on the case[55]. The decision to appoint the representative is considered an order of delegation. If the attorney can demonstrate a legal excuse for not accepting the brief, then it is for the head of the court to appoint an alternative attorney.
B. The appointed attorney must prepare the submission and defend the accused, or be replaced by an appointed attorney, with the court imposing a fine[56] implemented by a memo written by the head of the court to the department of implementation, without violating the procedural rules of the court, in accordance with the Law of Lawyers[57]. He shall be exempt from the fine if at any time it is proved that he was excused from attending the session in person or through a representative.
Article 145
The accused must appear in person in a trial of contention[58]; the attendance only of his representative is not acceptable.
Article 146
The accused may present a written excuse if he cannot attend, and one of his relatives may present this report. If it is accepted by the court, another time is fixed for the trial, and the accused and others connected with the case are given notification.
Article 147
A. The trial will take place when the two parties attend. If the accused has absconded or is absent without legal excuse, despite his having been informed, a trial will take place in his absence.
B. If the accused does not attend and has not been notified in person, the trial will not take place until he has been notified in person.
Article 148
If there are a number of accused and amongst them is one who has absconded or is absent, the trial of those who are present takes place, as does the trial of those absent, but the case of those who are present takes precedence over the case of those who are absent.
Article 149
A. The trial of an absent accused or one who has absconded is conducted according to the guidelines for the conduct of trials where the accused is present.
B. Notification of the in absentia judgement is given to the person against whom the judgement has been made. If the accused has absconded at the time of notification, notification is given as stipulated in Article 143.
C. The court issues an arrest warrant against the person who has been sentenced in absentia to a penalty restricting his freedom, for a felony or misdemeanour.
Article 150
If the civil plaintiff abandons his claim, whether by his absence or in accordance with the provisions of Article 22, or through a request presented to the court, he is considered to have given up his right to a review of the civil case before the criminal court and the court considers the criminal case. It may imply from his absence that he has abandoned his complaint in accordance with Article 9.
Article 151
In the case of an accused who absconds after presenting his defence but before the issue or a verdict, without informing the court of any legal excuse, an arrest warrant is issued, requiring him to attend for delivery of the verdict.
Section 3 - Court Procedures
Chapter 1 - General Principles in the trial
Article 152
Trial sessions must be open unless the court decides that all or part should be held in private and not attended by anyone not connected with the cases, for reasons of security or maintaining decency. It may forbid the attendance of certain groups of people.
Article 153
The court and those entrusted with its administration may prohibit any individual from leaving the court room, and if someone leaves in violation of this prohibition, without the permission of the court, the court may rule immediately for detention for 24 hours or a fine not exceeding 3 dinars, with no right to appeal against this ruling. The court may however issue a pardon before the end of the session and retract the ruling issued.
Article 154
The court may prevent the parties and their representatives speaking at undue length or speaking outside the subject of the case, repeating statements, violating guidelines or making accusations against another party or a person outside the case who is unable to put forward a defence.
Article 155
A. It is not permissible to try any accused who has not been referred to the court.
B. If it becomes clear to the court before judgment on a case is made, that there are other persons linked to the offence, either as principals or as accessories, and procedures have not been taken against them, it may consider the case with regard to the accused present, and request that the investigative authorities take legal proceedings against the other persons or decide to suspend the case until the investigation has been completed.
Article 156
The accused attends the court room without restraint or handcuffs and the court must use necessary means to ensure the security of the court room.
Article 157
The court may, at any time whilst the case is being considered, order the release of the accused with or without bail unless he is accused of an offence punishable by death. It may order his arrest or detention following any release, stating the reasons for this in the order issued.
Article 158
The accused may not be removed from the court room during consideration of the case unless he violates the rules of the court, in which case procedures continue as if he were present. The court must keep him informed of the procedures which took place in his absence.
Article 159
A. If a person commits a misdemeanour or infraction whilst in the court room, the court may evaluate the case against him at the time, suspending the initial case and making a ruling after listening to statements from a representative of the Public Prosecution, if present, and statements in defence of the person mentioned, or transferring him to an investigative judge after making a written record of the incident.
B. If a felony is committed, the court makes a written record of the event and transfers the accused to an investigative judge for the necessary legal steps to be taken.
Article 160
A. If the ruling on a criminal case is suspended, pending the result of the ruling in another criminal case, the ruling of the first must be suspended until the ruling on the second has been made.
B. If it is proved that the accused is absent for reasons outside his control, for example because he is imprisoned or missing, the investigative judge or criminal court issues a ruling, according to the circumstances, ordering the suspension of criminal proceedings against him temporarily, and the suspension of any civil case until such a time as he returns or his fate becomes clear. The civil plaintiff in this case does not have the right to refer to the civil court.[59]
Article 161
If the case is being reviewed by a judge whose place is taken by another judge, the second judge may base his judgement on procedures and investigations undertaken by his predecessor or he may repeat these procedures and investigations himself.
Article 162
The court may decide on the suspension of a case for a suitable period if necessitated by circumstances. It must inform the accused, other litigants and witnesses who have not yet testified that they are to attend the session when it resumes and the court will meet the cost of their expenses.
Article 163
The court may order that any investigatory procedure or procedures be taken, or that any person be ordered to hand over information, documents, or items, if that will assist the investigation. In the event of a refusal to hand over something in his possession, a person should be transferred to an investigative judge for legal procedures to be taken against him.
Article 164
The court orders that items seized be brought to the courtroom wherever possible, where the accused and other parties are able to see and note them.
Article 165
The court may proceed to conduct an investigation if it appears that this will assist in establishing the truth and should allow the litigants to attend the investigation.
Article 166
The court may appoint one or more experts in matters requiring their opinion and may permit the wages of the expert to be borne by the treasury as long as the price is not unreasonably high.
Chapter 2 - Court Procedures in non-summary cases
Article 167
The trial begins with the summoning of the accused and other parties and the formal identification of the accused, and the transfer decision is then read. The court hears one at a time the testimony of the complainant, the statements of the civil plaintiff and the statements of the other[60] witnesses. The court orders the reading of the reports, investigations and other documents. The court then hears the statement of the accused, along with the speech and requests of the complainants, civil plaintiff, person who stands as the civil respondent and public prosecution.
Article 168
A. Before giving testimony each witness is asked to give his full name, profession, age, place of work and relationship to the parties. Before giving his testimony, he must swear that he will speak the truth and nothing but the truth.
B. The witness gives his testimony orally and he may not be interrupted during its delivery. If he is unable to speak due to disability, the court will give him permission to write his statement. The court may ask any questions necessary in order to clarify the facts after completion of the testimony. The Public Prosecution, complainant, civilian plaintiff, a civil official and the accused may discuss the testimony via the court[61] and ask questions and request clarifications to establish the facts.
C. It is permissible to remove the witness whilst the testimony of another witness is being heard and the witness may be confronted by another witness during the testimony.
Article 169
The testimony should be based on the facts which the witness is able to recall through one of his senses.
Article 170
The court may order that testimony, previously given in the written report collating the evidence or during the initial investigation or before it or any another criminal court, be heard in front of it, if the witness claims not to recall all or some of the facts to which he testified, or if the previous statement clarifies his current statement before the court. The court and other parties may discuss all of this.
Article 171
The court may hear the testimony of anyone who attends the trial and anyone who puts himself forward with information. It may summon any person to attend to deliver his testimony if it is considered that this testimony will help establish the truth.
Article 172
If the witness does not appear or if his testimony cannot be heard because he has died, is unable to speak or is no longer qualified to testify or because his whereabouts are unknown or if his appearance before the court would cause delay or exorbitant expense, the court may decide to hear testimony previously given in the written record of the collection of evidence or during the initial investigation, or in front of another criminal court in the same case. This testimony will be treated as though it were given before the court.
Article 173
If the witness is excused due to illness, or any other reason for his inability to attend, from giving his testimony, the court, after informing the parties, may delegate a member of the court, an investigative judge or misdemeanour judge, to travel to the witness's location to hear the witness and send a written report to the court.
The parties may attend in person or through representatives and direct the questions they think appropriate. If, after the transfer or sending of a judge to the location of the witness, the reason is deemed not to be valid, a penalty may be imposed as prescribed by law for failure to attend.
Article 174
A. If the witness does not attend, the court may, despite his prior notification, permit that he be re-summoned to attend or it may issue an arrest warrant against him for attendance to deliver the testimony and the witness may be given a penalty as prescribed by law for not attending.
B. If the witness attends the court before the trial has been completed and it becomes clear that he has an acceptable excuse for being late, the court may retract the judgement issued against him.
Article 175
The court may, either on its own or at the request of the parties, request discussion of a testimony or return to its discussion and seek clarification of what the witness has said in order to establish the facts.
Article 176
If the witness refuses to swear the oath or give testimony, other than in cases where this is permissible by law, the court may issue a sentence against him as prescribed by law for refusal to testify and may order the reading of his previous statement which should then be treated as a testimony which was given in front of the court.
Article 177
An appeal by cassation may be made before the Felony Court against judgements made against witnesses by the Court of Misdemeanours in accordance with legally prescribed guidelines. The decision will be final. It is also permissible to appeal against these judgements to the Court of Cassation if they are issued by the Felony Court. The decision of the Court of Cassation is final. It will be sufficient in these cases to send a written record of the session and a copy of the judgements issued against the witness during the appeal review.
Article 178
Provisions of section 2 of part 4, book 2 should be applied as far as possible when hearing witness testimony in court.[62]
Article 179
The court may ask the accused any questions considered appropriate to establish the truth before or after issuing a charge against him.[63]
Article 180
If the accused refuses to answer questions directed to him or if his answers are contradictory or contradict his previous statements, the court may order the reading and hearing of the accused’s earlier answers and statements.
Article 181
A. If the complainant withdraws the complaint or the court considers that the complaint has been withdrawn in accordance with the provisions of Article 150 and if the offence is one in which conciliation is permissible without a court agreement, the complaint is considered as rejected.
B. If, after taking steps to clarify the situation as described in the Articles above, it becomes clear to the court that the evidence does not point to the accused having committed the offence with which he is charged, his discharge is ordered.
C. If it appears to the court, after the aforementioned steps have been taken, that the evidence indicates that the accused has committed the offence being considered, then he is charged as appropriate, the charge is read to him and clarified, and he is asked to enter a plea.
D. If the accused confesses to the charge against him and the court is satisfied of the truth of his confession and that he understands its implications, then the court listens to his defence and issues a judgement in the case without any requirement for further evidence. If he denies the charge or does not offer a defence, if he requests a trial or if the court considers that his confession is confused, or that he does not understand the consequences or if the offence is punishable by death then the case goes to trial, defence witnesses are heard and the remaining evidence in his defence is heard, unless the court finds it to be an unjustified attempt to impede the investigation or to mislead the court. When this has been completed, the commentary of the other parties, the Public Prosecution, and the defence of the accused are heard. The end of the trial is then announced, and the court issues its verdict in the same session or in another session held soon afterwards.
E. The accused should be the last to speak in the judicial investigation or trial.
Article 182
A. If, after the trial has been conducted as above, the court is satisfied[64] that the accused committed the offence of which he is accused, it issues a verdict of guilty and rules on the penalty to be applied.
B. If the court is satisfied that the accused did not commit the offence of which he is accused or that the action in question is not a criminal offence, a verdict of not guilty is issued.
C. If it becomes clear to the court that there is insufficient evidence to condemn him the charge is dropped and he is discharged.[65]
D. If it becomes clear to the court that the accused is not legally responsible for his actions the court issues a judgment of diminished responsibility and follows the steps stipulated by law.[66]
E. A detainee is released when a verdict of not-guilty, diminished responsibility, release or rejection of the complaint is issued, as long as there is no other legal reason for his detention.
Chapter 3 - Seizure of Defendant's Assets
Article 183
A. The investigative judge and the court may seize the assets of a person accused of committing a felony involving movable or immovable property. The seizure will include all funds that were earned via these assets or which have been received as compensation for them. Items which may not otherwise be seized in accordance with the law may be seized if it is proven that they were obtained as a consequence of an offence.
B. The court, when issuing a sentence in absentia against a person accused of a felony, must order seizure of assets if not previously seized.[67]
Article 184[68]
A. The investigative judge and the court may[69], based on a request from the Public Prosecution or the appropriate administrative party, order precautionary seizure of assets immediately, if the action on which it is based forms an offence related to the external or internal security of the state or is an offence against the rights or property of the state, including assets considered to be public assets or those connected to public welfare. The precautionary seizure process may be ordered by the competent Judicial Authority directly when necessary even though no such request might have been made.
B. In the circumstances indicated in sub-paragraph A, it is permissible to request seizure of assets before a case has been lodged, when it is lodged, or at any stage of the criminal case, up to the point where a definitive verdict has been given.
C. All moveable and immovable assets of the accused which are legally liable to seizure, are subject to seizure, whether in his possession and subject to his control or whether possession or control have been transferred to another party. The seizure includes all assets if the rights and damages resulting from the offence are unlimited. If they are, or subsequently become limited, a seizure order or amendment is issued to guarantee that the state recovers only the rights and damages to which it is entitled, no more.
Article 185[70]
A. If the seizure is put in place before the complaint is lodged, the person who requested the seizure must lodge his complaint within 3 months of the decision to make the seizure.
B. The accused whose assets have been seized, the person who holds the seized assets, land the person who claims rights over the seized assets, may challenge the decision of seizure with the judicial authority which issued it, within 8 days from the date of notification of the seizure order or from the date on which they became aware of it.
C. If the party requesting the seizure does not submit the complaint against the person whose assets have been seized within the period specified in sub- paragraph A the seizure order is cancelled and all resulting legal effects are cancelled.
D. If the complaint is submitted within the time limit specified in sub-paragraph A the judicial authorities to whom the criminal case passes may decide to leave the seizure order in place or to amend it or to cancel it, depending on the facts of the case and the case which has been made against the seizure.
Article 186[71]
A. The seizure in progress is considered, under the terms of Articles 183, 184 and 185, a precautionary seizure and remains in place during procedures to contest it; the assets seized and claims over them are administered under civil law so long as it does not conflict with the provisions of the paragraphs above.
B. If the criminal case ends for any legal reason, before a judgment has been issued, the seizure remains current in accordance with the provisions of Articles 184 and 185, and the administrative party concerned must establish a legal case on the rights and damages covered by the criminal case within three months of notification of the end of the criminal case. In the case of failure to comply with this, the seizure order is cancelled and the seized property returned to its owner.
C. If a verdict of guilty is issued against the accused, the assets remain seized and are transferred to a state of implementational seizure once the judgment is definitive.
D. If a verdict of not guilty or diminished responsibility is reached, or if an order is issued to discharge the accused or throw out the complaint, once this decision is final the seizure is cancelled and the assets restored to the owner even if this is not stipulated in the court's ruling.
Chapter 4 - Charge
Article 187
A. The charge is written down on a special piece of paper in the name of the judge issuing it, with his position and includes the name of the accused, his identity details, the place and time of commission of the offence and a legal description of the offence and the name of the victim or of the item against which the offence was committed, the way in which it was committed and the legal paragraphs which apply. The paper is dated and signed by the judge or head of the court.
B. In setting out the description for the offence, the court is not restricted to the definition in the arrest warrant or summons or transfer decision.
Article 188
A. One charge is made for each offence ascribed to a particular individual.
B. One charge is made for multiple offences as stipulated in sub-paragraph 132(A).
C. One charge is made for each connected offence as stipulated in sub-paragraph 132(B).
D. It is permissible to make one charge against all the perpetrators of one offence.
E. There will be a trial for each charge.
F. The trial will take place as if for a single case under the circumstances stipulated in Articles 132 and 133.
Article 189
A. If the accused is accused of treachery or embezzlement of public funds, it is sufficient in the charge to state the sums involved in the offence without giving details or dates of the appropriation.
B. The court notifies the accused of any change or amendment to the charge.
Article 190
A. If it becomes clear that the accused is accused of an offence punishable by a more severe penalty than that with which he has been charged, or if there is a difference between the descriptions given in the charge and the accusation, the charge must be withdrawn and a new charge issued.
B. The court notifies the accused of all changes and amendments made to the charge in accordance with sub-paragraph A and grants a period of time for the defence to challenge this new charge if this is requested.
C. A decision to withdraw the charge is organized along the same lines as if a not guilty verdict had been issued.
Article 191
If the accused is charged with an offence consisting of a number of actions, and it subsequently appears that the accused committed only part of the offence, the court completes the trial and issues a verdict without the need for a new charge to be issued.
Article 192
If it appears that the accused has committed a minor offence which has no connection with the offence with which he has been charged the court completes the trial and issues the verdict without the need for a new charge; an attempted offence is considered a minor offence.
Article 193
Material negligence or error does not nullify the charge provided that it does not alter its legal character and does not affect the accused's defence.
Chapter 5 - Conciliation
Article 194
Conciliation is acceptable by decision of the investigative judge or court if requested by the victim or the person representing him legally in the case. Action on the complaint will be suspended in accordance with the provisions laid out in the following paragraphs.
Article 195
A. If the offence indicated in Article 194 is punishable by a term of detention of a year or less or by a fine, conciliation is acceptable without reference to the judge or court.
B. If the offence is punishable by a period of detention exceeding a year, conciliation is only possible through reference to the judge or court.
C. Conciliation is acceptable through the agreement of the court or judge in offences of threats, damage, spoiling or sabotage of property if they are punishable by a period of detention not exceeding a year.
Article 196
A. The request of conciliation with an accused is not applicable to another accused.
B. Conciliation is not acceptable if accompanied by conditions.
Article 197
A. A request for conciliation will be accepted at all stages of investigation and trial up to the issue of the verdict.
B. If legal conditions in the request for conciliation are fulfilled, the investigative judge or court will issue a ruling on acceptance and release the accused if detained.
Article 198
The decision announcing the acceptance of conciliation has the same effect as a verdict of not guilty.
Chapter 6 - Cessation of Criminal Proceedings
Article 199
A. The Chief Prosecutor may[72] request that the Court of Cassation put an end to the procedures of examination or trial, either temporarily or permanently, in any case up to the point of the issue of the final verdict, if there is a reason justifying this action.
B. The request must include the justification and, when submitted to the Court of Cassation, the papers of the court are requested, and the investigative judge or court must send them for examination on the case.
C. The Court of Cassation checks the request and decides whether to accept it and suspend proceedings permanently or temporarily for a period not exceeding three years, if it finds justification. If there is no justification, the request will be refused.
D. After the Court of Cassation has issued its decision, the file is returned and a copy of the decision is sent to the Director of Public Prosecutions.
E. If the decision stipulates a suspension of proceedings, the investigative judge or court must release the accused if he is detained. The issue of this decision will not prejudice the right of the judicial authorities or court to confiscate items, the possession of which is illegal.
F. The decision to suspend proceedings temporarily may be converted to one of permanent suspension in accordance with the provisions stipulated in this section.
Article 200
A. The investigation and trial will resume after the end of a period of temporary suspension from the point where they stopped.
B. The decision to suspend proceedings permanently has the same legal effect as a not guilty verdict, although it does not prejudice potential damages from a civil case raised, or the payment of compensation.
Chapter 7 - Trials in Summary Cases
Sub-chapter 1 - Trial and Ruling
Article 201
The provisions and procedures for trials in non-summary cases are followed, as far as possible, in trials for summary cases subject to the following paragraphs.
Article 202
If it is clear to the Misdemeanour Court that the infraction being ruled upon is liable to a penalty of detention or if a request for compensation or return of property has been submitted, it must set a date for a session to review the case and give notice to the accused, other litigants and witnesses to attend.
Article 203
A. The process of a [summary] trial entails the court hearing the testimony of the complainant or civil plaintiff, testimony of the witnesses, reading reports, then hearing a statement from the accused, if in attendance, without any charge being made, and recording a written summary of this, thus covering all aspects of the case.
B. If the court is satisfied[73], after taking the steps described in sub-paragraph A, that the accused committed the offence of which he is accused, it issues a guilty verdict and rules on the penalty to be imposed.
C. If the court is satisfied that the accused did not commit the offence of which he is accused, or if there is insufficient evidence for conviction, or if the action which was committed is not a criminal offence, a ruling is made that the accused be released.
Article 204
A. In cases of infractions, transferred in summary form, if the court finds that the offence of which the accused is accused is a misdemeanour, it must review the case either in summary or non-summary form with regard to the provisions of sub-paragraph A of Article 134 or return it to the investigative judge for a preliminary investigation, in accordance with the basic facts. If the court finds that it is a felony, it must return the case to the investigative judge for investigation as stated above.
B. The court may review, in non summary form, a case of misdemeanour transferred to it in summary form or may review, in summary form, a case which has been transferred to it in non-summary form, with regard to the provisions of sub-paragraph A of Article 134.
C. If the court reviews a case of misdemeanour in summary form, it may not give a judgment exceeding the maximum penalty for an infraction as stipulated in the Penal Code.
Sub-Chapter 2 – Penal Order
Article 205
A. If the court finds, from examination of the case papers, that the infraction is not liable to a sentence of detention, and a request for compensation or return of property has not been submitted, and the action of the accused is proven, it may issue a penal order for a fine or other penalty without trial.[74]
B. If it is clear to the court that there is insufficient evidence to prove that the accused committed the action of which he is accused, or that the law does not provide for a penalty, it issues an order of discharge.
Article 206
The penal order or discharge order is issued in writing and the accused is notified of the order, in accordance with basic principles.
Article 207
The accused may contest the penal order by a petition submitted to the court within 7 days of the date of notification and the court will appoint a date for trial and notify the accused in accordance with basic principles.
Article 208
A. If the contesting party attends the session, and the contestation was submitted within the legal time limit, the court will conduct a trial in accordance with the paragraphs above and will issue a verdict on the case in accordance with the provisions of the law, with the condition that the penalty against the accused shall be no more severe, and the verdict will be subject to appeal through legal methods.
B. If the contesting party does not attend the session, or it is clear that the contestation was submitted after the legal time limit, the court will reject it.
Article 209
If there are a number of persons against whom a penal order has been issued, and only some of them contest it, the provisions of contestation apply only to those who have contested the order.
Article 210
If the penal order is uncontested or the contestation is rejected in accordance with sub-paragraph B of Article 208, the penal order is absolute.
Article 211
When the penal order is executed, the accused may submit a defence that he retains the right of contestation because he was not notified in accordance with basic principles. In this case his defence is submitted as a petition to the court, which may refuse it if it finds that the grounds on which it is based are untrue. If it is accepted, the penal order will not be executed and a date will be set for a session to review the case in accordance with previous proceedings.
Chapter Eight – Judgment and Reasons
Sub-Chapter One - The reasons
Article 212
The court is not permitted, in its ruling, to rely upon a piece of evidence which has not been brought up for discussion or referred to during the hearing, nor is it permitted to rely on a piece of paper given to it by a litigant without the rest of the litigants seeing it. The judge cannot give a ruling on the basis of his personal knowledge.
Article 213
A. The court's verdict in a case is based on the extent to which it is satisfied[75] by the evidence[76] presented during any stage of the inquiry or the hearing. Evidence includes admission reports, witness statements, written records of an investigation, other official discoveries, reports of experts and technicians, background information[77] and other legally established evidence.
B. One testimony is not sufficient for a ruling if it is not corroborated by background information[78] or other convincing evidence or an admission from the accused. The exception to this rule is if the law specifies a particular way of proving a case, which must be followed.
C. The court can accept an admission only if it is satisfied with it[79].
Article 214
The court must decide that the witness is not fit to give testimony if it becomes clear he is unable to remember details of the event or that he is not fully aware of the of value of the testimony he is giving due to his age or his physical or psychological state.
Article 215
The court has absolute authority in evaluating the testimony. It can either fully accept it or reject it, accept the statements given by the witness during the police investigation or during reports from the initial [judicial] investigation[80] or given in front of another court in the same case, or completely reject the witness' statements.
Article 216
The court may accept the statement of a dying victim as evidence relating to the offence and its perpetrator or any other related matter.
Article 217
A. The court has absolute authority in evaluating the accused’s admission and acting upon it whether it was given in front of the court, in front of the investigative judge, during other court hearing of the same case or in another case, even if the witness subsequently withdraws his statement.[81] The court can accept his admission to the [judicial] investigator if there is enough evidence to convince it that the investigator did not have sufficient time to present the accused to the [investigative] judge so that his admission could be recorded.
B. Admissions may not accepted be if the conditions stipulated in A are not present.
Article 218
It is stipulated that an admission must not have been extracted by coercion.[82]
Article 219
It is permissible for the court to divide the admission up, accept the part which it believes to be correct and reject the rest. It is not however permissible to interpret the admission or divide it into parts if it is the only piece of evidence in the case.
Article 220
A. Reports of investigations and of the collating of evidence, and all the details in them about procedures of disclosure, searching, and other official reports, are regarded as elements of proof to be taken into consideration by the court. The litigation can discuss them or prove the opposite.
B. The court must treat events written down by the officials in their reports as part of their official duties as evidence which corroborates their statement, provided they wrote them when they occurred or not long afterwards.
Article 221[83]
Sub-Chapter 2 - The ruling
Article 222
Everything that takes place in the court is written up in a report. The judge or the chief justice signs all its pages. The report must include the date of each hearing, whether it was public or closed, the names of the judge or judges who considered the case, the clerk, the representative of the Public Prosecution, the names of the accused, and other members of accused's team, the names of the witnesses, a report on the papers which were read out, the requests made, the procedures concluded, a summary of rulings, and everything else that occurred during the trial.
Article 223
A. The court retires before giving its ruling. After it has formulated the ruling, the hearing is resumed publicly. The ruling is read out to the accused or its contents are made clear to him.
B. If the verdict is guilty, then the court must issue another ruling at the same hearing with the penalty and explain them both.
Article 224
A. The ruling should contain the name of the judge or judges who have issued it, the accused, the other parties and a representative of the Public Prosecution, a description of the offence he is accused of perpetrating, the paragraph of law which applies, the reasons for the court's ruling and the reasons for the level of sentence passed. The ruling on the penalty must contain the principal and subsidiary penalty penalties impose by the court; the amount of compensation for which the court has ruled the accused or person, if any, taking civil liability to be liable; or the court's decision on the return, confiscation or destruction of assets or items claimed. The judge or the court's panel signs and dates every ruling and seals them with the seal of the court.
B. Rulings are issued on the basis of consensus or a majority of them. All those dissenting from the majority decision must explain their views in writing.
C. Any person disagreeing with the guilty ruling must still express his opinion on the most appropriate penalty for the offence on which a guilty ruling has been made.
D. If the court issues a death sentence, it must explain to the person given the sentence that his case papers will be sent automatically to the Court of Cassation for review. He may also appeal against the ruling at the Court of Cassation within 30 days, starting from the day after the ruling has been issued.
E. The term subsidiary penalties mentioned in this law means consequent and supplementary penalties, and the precautionary measures stipulated in the Penal Code.
Article 225
The court is not permitted to retract, alter or change a ruling it has issued except to correct a material error. This must be noted down in the margin and considered a part of the ruling.
Article 226
The case file must include the original ruling issued. When requested, a photocopy of it must be given to the accused.
Chapter Nine - Authoritativeness of Provisions and Decrees
Article 227
A. A final criminal verdict of guilty or not guilty is proof of the event to which the offence relates, ascribing it to its perpetrator and its legal status.
B. A decision from the Court of Cassation or the investigative judge to discharge an accused has the force of a not guilty verdict once it has been made absolute.
C. The civil court is not bound by the verdict or absolute penal decision in matters and facts on which no ruling has been made or on which the ruling made was not necessary.
Article 228
The provisions of Article 227 also apply to the penal order.
Article 229
A verdict issued without the involvement of the criminal court cannot be used in the criminal court as an argument in relation to the veracity of the events forming the offence or its legal description or proof that the accused perpetrated the offence.
Section 4 - Proceedings against those with Diminished Responsibility
Chapter One - Insane Persons
Article 230
If it appears during an investigation or proceedings, that the accused is not able to conduct his own defence on the grounds of mental illness, or if the situation requires an examination of his mental faculties in order to test his criminal responsibility, the investigation or court proceedings are suspended, by decision of the investigative judge, or court, and, if he has been charged with an offence for which he cannot be released on bail, he is placed under supervision in a government health institution, capable of treating mental illness. For other offences, however, he is placed in a government, or non-government health institution, at his expense on the request of whoever is acting on his behalf in law, or at the expense of his family, on payment of a surety by a guarantor. A specialist government medical committee is charged with carrying out an examination and presenting a report on the state of his mental health.
Article 231
If it appears from the report of the committee referred to in Article 230 that the accused is not able to present his own defence, the investigation is postponed until he has sufficient mental awareness to make his own defence, and he is placed under the supervision of a government health institution if he is accused of an offence for which he cannot be released on bail. But in the case of other offences, he can be handed over to one his relatives on a surety from a guarantor, on condition that a commitment is made that he should receive treatment in Iraq, or elsewhere.
Article 232
If it appears from the decision of the medical committee that the accused was not criminally responsible owing to mental illness at the time the offence was committed, the judge will decide diminished responsibility and the court will issue a judgment of diminished responsibility and will take whatever action is necessary for handing him over to one of his relatives, on payment of a guarantee, to undergo whatever treatment is necessary.
Chapter 2 - Juveniles
Article 233
A. No court action is taken against a young person who has not attained the age of seven.[84]
B. The age of the juvenile at the time the offence was committed is the basis for choosing the appropriate court for proceedings against him.
C. If the juvenile reaches the age of 18 during the investigation, he is referred to the Court of Misdemeanours, but if he reaches this age after being referred to the Juvenile Court, then this court continues to consider the case.
Article 234
A. The investigative judge, or investigating officer is responsible for gathering the evidence on each offence raised against the juvenile.
B. One or more judges, or one or more [judicial] investigators can be assigned to the investigation into juvenile offences on the order of the Minister of Justice in the places designated by him.
Article 235
A. If a juvenile and a person of full legal age are accused ((together)) of committing an offence, it is for the investigative judge to divide the case accordingly and refer each of them to the appropriate court.
B. If it appears to the Juvenile Court that one of the accused reached the age of 18 before being referred, it is to continue examining the case of the juvenile, separate the case pertaining to the youth of full legal age, return the relevant documentation to the investigative judge and refer him to the appropriate court.
Article 236
It is for the investigative judge and the court considering the case of a juvenile in the Court of Misdemeanours and the Court of Felonies to ask for help from organizations such as the official health and social services, and from experts and doctors, to investigate the social, medical, dental, psychological and environmental situation of the juvenile, and the reasons which might have driven him to commit the offence, in cognisance of the content of other laws, which make compulsory referral of a juvenile to the competent authorities for the purpose given.
Article 237
A. A juvenile is not detained for an infraction, but he can be detained on a misdemeanour or felony for the purpose of investigating him, studying his personality, or in the event that he cannot be released on bail. However, if he is accused of an offence punishable by death, and he is more than ten years old, then detention is mandatory.
B. The decision is taken to detain a juvenile in premises where he can be observed, but if is not possible, steps must be taken to ensure he does not mix with older detainees.
Article 238
A. Proceedings against a juvenile are held in private session which is only attended by: members of the court and officials; those people connected with the case; relatives of the juvenile; those acting for his defence; witnesses and other accused person; officials from the health and social services; and representatives from associations concerned with juvenile affairs.
B. It is for the court to remove the juvenile from the proceedings after being questioned on offences in breach of public order, but he is summoned again later and asked hat he has been doing in the meantime since his last appearance.
Article 239
It is for the court, after issuing a judgment against the juvenile to pay a fine, to determine the means of acquiring the money via the Department of Implementation, in accordance with the Law of Implementation, or to reach a decision over detaining him instead at a reform school, or lodging house at a school for girls, in accordance with the circumstances, but for a period of not less than 6 months and no more than one year.
Article 240
Every decision, procedure or judgment has to be notified to the juvenile and, if possible, to one of his parents, or to his guardian, and it is for anyone of these to consult the competent authorities on all matters relating to the investigation into the offence involving the juvenile, the proceedings arising from them, or the judgment or decision issued against him, the appeal lodged regarding them or their implementation.
Article 241
Neither the juvenile, nor any of the persons listed in Article 240 is allowed to contest the judgment for the juvenile to be handed over to one of the parents, or the person in whose care he resides.
Article 242
A. The procedures stipulated in the Law on Juveniles[85] are applicable to the arrangements for the investigation and the court proceedings, as well as for appeal and implementation, while taking into consideration the provisions appearing in the earlier paragraphs.
B. The juvenile is excused from giving fingerprints for the purpose of the investigation stipulated in Article 70.
BOOK FOUR - Methods of Reviewing Judgments
Section 1 - Objection to Judgment in absentia
Article 243
A. The person judged in absentia is notified of the judgment issued on him in accordance with the terms of Article 143, and if thirty days pass from the date of notification of the judgment in the case of an infraction, three months from the date of notification of the judgment in the case of misdemeanour and six months in the case of a felony without his presenting himself to the court which issued the judgment or to any police station and without his objecting to it within the period mentioned, the verdict of guilty and the principal and subsidiary penalties will have the status of a judgment in the presence of the parties.
B. The objection by the person sentenced is to be submitted in a petition either directly to the court or to any police station or in a written report regulated by the court or in any police station after asking the person sentenced immediately after his arrest or after giving himself up whether he wants to object to the verdict and if he wants to make a written record of the reasons for his objection. If he does not want to do so, then this is stated in the written report.
Article 244
A. If the person sentenced gives himself up or is arrested and the objection procedures are completed within the period specified in Article 243, the court will decide to detain him and set a date for the objection to be reviewed and then notify him and those concerned in accordance with the rules, The court may decide to release him on bail unless the offence for which he is sentenced does not permit him to be released on bail.
B. The period the sentenced person spends in detention will be taken into account.
C. If the sentence issued is a fine and the person convicted pays it to the court or to the police station then he is released and the aforementioned procedure is to be followed in submitting his objection.
Article 245
A. If the objection is submitted within the time limit and the objector does not attend any of the court objection sessions without legitimate excuse, having been notified according to the rules, or if he absconds, the court will decide to reject the objection and it will be a judgment in absentia and the decision to reject it will be notified in accordance with the rules with the status of a judgment in the presence of the parties which cannot be appealed against except by other legal means.
B. If the objection is submitted after its time limit has elapsed, the court will decide to reject it formally without any need to notify the objector of the decision to reject it and it is considered a judgment in absentia with the status of a judgment in the presence of the parties which cannot be appealed against except by other legal means.
C. If the objector attends and the objection is submitted within its legal time limit, the court will decide to accept it and examine the case again in the light of the objection and will issue its judgment with the support of the judgment in absentia or will amend it or cancel it, on condition that it will be not judged more harshly than the sentence imposed in absentia.
D. The exception to paragraphs A and B is in the case of the death sentence or a sentence of life imprisonment.
Article 246
A. The submission of an objection results in the suspension of the examination into the appeal against judgment in absentia submitted to the Court of Felonies or to the Court of Cassation from the Public Prosecution or other accused or anyone connected with the case against the sentence which is issued in the objection trial.
B. Appeal against the judgment issued as a result of the objection trial is permissible by other appeal methods prescribed by law.
C. If there is an appeal against the judgment to reject the objection in accordance with sub-paragraph A of Article 245, this appeal will include this judgment and the judgment in absentia against which the objection is being made, even if this is not made clear in the appeal petition. The appeal against the judgment issued in accordance with sub-paragraph B does not include anything except the judgment to reject the objection.
Article 247
A. When a person is arrested and sentenced in absentia to death or to a prison sentence, be it life imprisonment or imprisonment for a term of years, or gives himself up to the court or to any police station, his trial will resume and the court has the right to issue any judgment permitted under the law. Its decision will be subject to appeal by any other legal means.
B. If a person sentenced in absentia to death or to a prison sentence, be it life imprisonment or imprisonment for a term of years, flees again, the provisions of Article 245 in its sub-paragraphs A, B and C only will apply.
Article 248
Considering the judgment in absentia with the status of a judgment in the presence of the parties has the following consequences:
1. Minor and major penalties, other than the death penalty, may be implemented;
2. The Penal Court issues an order to arrest the person convicted;
3. The ruling on reimbursement and compensation is implemented in accordance with the law of implementation on condition that the person sentenced puts forward guaranteed surety of an amount the court considers appropriate, if this is found to be necessary. This surety will be forfeited after three years;
4. The person sentenced to death or to life imprisonment or imprisonment for a term of years is forbidden, as long as he is on the run, to administer or spend his money. The court must put a block on his money and its administration in accordance with the rules for managing seized money pursuant to the provisions of this law, if it has not already been seized. He is also forbidden to bring any legal action in his name and any commitment or action he undertakes will be considered null and void under the rule of law.
Section Two - Cassation
Article 249
A. The Public Prosecution, the accused, the complainant, the civil plaintiff and the person who is liable under civil law have the right to appeal to the Court of Cassation against the provisions, decisions and judgments issued by the Court of Misdemeanours or[86] Court of Felonies on a misdemeanour or felony, if it was based on a breach of the law or a mistake in the application of the law or in its interpretation, or if there was a fundamental error in the standard procedures or in the assessment of the evidence or of the penalty, and this error influenced the judgment.
B. A mistake in the proceedings cannot be ignored unless it has not been damaging to the defence of the accused.
C. No individual appeal for cassation will be accepted over decisions issued on matters of jurisdiction, over preparatory and administrative decisions or any other decision on which there has not been a ruling in the case, unless it is subject to a halt in progress in the case; decisions involving arrest, detention and release on bail, or release without bail are also excluded.
Article 250
An appeal against a judgment or decision on which there has been a ruling in the case must include all the judgments and decisions already issued or connected with it.
Article 251
A. An appeal by the Public Prosecution is restricted to criminal cases and an appeal by the civil plaintiff and the person with civil liability is restricted to civil cases. An appeal by the complainant is restricted to whichever of the two he has requested. However, an appeal by the accused includes both criminal and civil cases, unless there as been a restriction to just one of them.
B. If an appeal was submitted by the Public Prosecution, it can reverse a judgment regarding all the persons convicted, but if it was submitted by only one of those convicted, the judgment will only be reversed in respect of that person, unless the reason on which the appeal is based also apply to the other convicted persons. In that situation the decision can be reversed with regard to all of them.
C. In the process of cassation over an appeal, steps are taken to ensure that the appellant is not prejudiced by the fact that an appeal is lodged, unless the judgment against which an appeal has been made is evidence of the fact that the law has been violated.
Article 252
A. The appeal takes place by means of a petition presented by the petitioner, or his legal representative, to the criminal court which issued the judgment, to any other criminal court, or directly to the Court of Cassation, within a period of thirty days, starting from the day after the judgment was issued, if in the presence of the parties, or from the date it was regarded as having the status of being issued in the presence of the parties, if it was in absentia.
B. If the petitioner is in prison, in detention, or in any way inhibited, he may present the petition through a prison, detention centre or appropriate official.
C. The petition contains the name of the petitioner, a summary of the judgment against him and its date, the name of the court which issued the judgment, the grounds on which the appeal is based and the final result.
D. The petitioner may show the grounds for the appeal separately on the petition, or he may give new grounds, before the decision is made. It is the responsibility of all parties involved in the case to present their own written statements and applications.
Article 253
It is up to the court that issued the judgment or decision for cassation to send a file on the case to the Court of Cassation, as soon as an appeal petition has been presented to it, or as soon as the Court of Cassation calls for it, in pursuance of Article 249, sub-paragraph C.
Article 254[87]
Without prejudice to Article 16 of the Public Prosecution Law No. 159 of 1979:
A. If the Felony Court has issued a sentence of death or life imprisonment in the presence of the accused, it must send a file on the case to the appellate court within ten days of the issue of the judgment, so that it can be reviewed for cassation, even if an appeal has not been lodged.
B. The court shall keep the case file involving sentences of death penalty or life or temporary imprisonment passed in absentia until the convict surrenders himself/herself or is arrested, and then he or she shall be tried again in accordance to article 247 of this law.
C. The appellate court shall accept papers submitted by the accused and those involved in the case before it issues its decision.
D. Judgments in absentia involving compensation and legal attorney fees can be executed when the judgment is issued. The civil claim plaintiff, unless he/she was not an official authority, shall submit a bail or financial promise unless the court decides to dispense with any of them. If the judgment in absentia involving compensation or legal attorney fees is executed, the court can subsequently decide to return all or part of the acquired funds on holding the trial with the accused present.
Article 255
In accordance with Article 254, the Court of Cassation sends the case file to the Chief Prosecutor's Office, immediately upon its receipt together with the grounds for the appeal, petitions and statements received from the parties involved in the case, presenting their demands and queries about the judgment or decision within 20 days of their receipt.
Article 256
An application for cassation over judgments and decisions does not imply suspension of their implementation unless the law so stipulates.
Article 257
Taking into account the provisions of the Judicial Organisation Law[88]:
A. The Court of Cassation Penal Board specializes in considering appeals into judgments and decisions issued by the Court of Misdemeanours[89] and the Court of Felonies.
B. The General Board at the Court of Cassation specializes in reviewing cases where there is a death sentence and cases which are dealt with directly by the President of the Court of Cassation, or in accordance with a proposal from the board stipulated in sub-paragraph (A) for referring the case. This applies also to cassation for other cases stipulated in the law.
Article 258
A. If it appears to the Court of Cassation that an appeal against a judgment or decision issued by the criminal court has not been presented within the period specified in law, it will confirm its formal rejection.
B. It is up to the Court of Cassation to summon the accused, the plaintiff, the civil plaintiff or person with civil liability (or both), or the representative of the Public Prosecution to hear their statements or for any purpose it requires in order to obtain the truth.
Article 259
A. It is up to the Court of Cassation, after checking the case documentation, to issue its decision on the matter in one of the following ways:
1. Confirm the ruling on the evidence presented and the principal and any supplementary penalties passed, as well as any other legal clauses;
2. Confirm the ruling of not guilty, conciliation, diminished responsibility or the decision to discharge, or any other ruling or decision in the case;
3. Confirm the conviction with a reduced penalty;
4. Confirm the conviction and return the documents, for review of the penalty, with a view to increasing its severity;
5. Return the documents to the Court once again to review the verdict of not guilty, with a view to passing a sentence;
6. Reverse the guilty verdict and the principal and supplementary penalties, and any other legal judgments, with a view to passing a verdict of not guilty, annulling the charge and releasing the accused.
7. Reverse the conviction ruling and penalty ruling and return the documentation to the Court for a re-trial, either complete or partial;
8. Reverse the ruling of not guilty, conciliation or diminished responsibility, or the decision to discharge, or any other ruling or decision in the case, return the documentation for a re-trial or a repeat judicial investigation.
9. Confirm the ruling issued in a civil case, reverse it completely, or reduce the amount of the penalty awarded, or return the ruling to the court to complete the investigation, or to hold a review with the aim of increasing the amount of the penalty awarded.
B. The Court of Cassation will explain in its decision the grounds on which it is based.
Article 260
The Court of Cassation may change the legal description of the offence for which a verdict of guilty has been issued against the accused to another description which corresponds with the nature of the act committed and may pronounce him guilty in accordance with the paragraph of the law which applies to this action, and review the penalty to see if it is appropriate or to make is more lenient.
Article 261
If the Court of Cassation reverses the verdict issued by a court which does not have jurisdiction, the case is transferred to the court which does have jurisdiction and the court which issued the verdict is given notification.
Article 262
If the verdict is reversed and a re-trial is ordered, the re-trial of the case in whole or in part is conducted in accordance with the stipulations of the decree of reversal, without reference to decisions or procedures which are not covered by the decree. A new verdict is issued for whole or part of the case.
Article 263
A. If the case is returned for a review of the sentence, it must be reviewed by the same judge or judicial body which issued the verdict unless there is a good reason.
B. If the court issues a verdict following the review, the case is then submitted to the Court of Cassation, and the judicial body must ratify the decision if it finds it to be in accordance with the law, or must make the penalty more lenient. If it finds that a guilty verdict should be issued against the accused or that the penalty must be of increased severity, the case is transferred to the Public Body of the Court of Cassation and it is for this body to issue the guilty ruling or the penalty to be imposed or to approve the judgment previously issued by the court.
C. If the trial court insists on its previous decision other than in the two cases mentioned in Sub-paragraph B of this Article, then the enlarged body of the Court of Cassation shall pass the decision in accordance with the competencies prescribed in Article 259 of this law and its decision shall be binding.[90]
Article 264
A. In addition to the provisions put forward, the Court of Cassation may, either of its own accord or in response to a request from the Public Prosecution or anyone else connected with the case, ask for the file on any criminal case to check the provisions and rulings issued on it, as well as the procedures and orders. In this case, it has the authority stipulated in this decision to consider an appeal, although it may not reverse a finding of not guilty or increase the severity of the penalty, unless it is requested so to do within 30 days from the date of issue of the judgment or ruling.
B. The Court of Cassation has the authority to intervene in accordance with sub- paragraph A if an appeal is prescribed in accordance with sub-paragraph A of Article 258.
C. The Court of Cassation may not exercise its authority under the terms of this Article in cases previously reviewed by appeal, with the exception of cases stipulated in sub-paragraph B.
Article 265
A. Appeal before an appropriate Felony Court is permissible as stipulated in Article 249, based on the provisions, decisions and procedures of the Misdemeanour Court in cases of infractions, and in decisions issued by the investigative judge, within 30 days, starting from the day following the date of issue.
B. In addition to the provisions of sub-paragraph A, the Felony Court may bring any case mentioned in the sub-paragraph mentioned or any written record of investigation in an offence in accordance with the provisions stipulated in Article 264.
C. The provisions of sub-paragraph C of Article 249 are considered on the question of decisions which cannot be appealed.
D. The Felony Court, in the cases laid out in this paragraph, has authority prescribed by the Court of Cassation in applying these provisions and decisions, and its decisions in these cases will be final.
Section 3 - Correction of the Cassation Decision
Article 266
A. The Public Prosecution, the convicted person and all others connected with a criminal case may request the correction of a legal error in the decision issued by the Court of Cassation, provided the request is submitted within 30 days, counted from the date a convicted, imprisoned or detained person is notified of the cassation decision or, otherwise, from the date the court dealing with the case receives the case documentation from the Court of Cassation.
B. The request is submitted directly to the Court of Cassation, or through the court, or prison or centre administration, if the convicted person is already in prison or detained.
Article 267
A request for correction is not accepted for the following decisions:
A. A decision for reversal and re-trial or a second judicial investigation;
B. A decision issued for the return of case documentation for review of the judgment;
C. A decision or judgment issued by the Court of Cassation General Board.[91]
Article 268
A. The Penalties Board reviews requests for correcting the decisions it has issued, provided that the President of the Court of Cassation has not been requested to do so by the General Board.[92]
B. Board reviewing the request for correction considers that the request does not comply with legal conditions, it will decide to reject it, or to accept it and correct the decision of cassation, either in full or in part.
Article 269
A. A request for correction can only be accepted on one occasion.
B. Decisions to turn down or accept a request for correction cannot be corrected after issue.
Section 4 - Re-trial
Article 270
A re-trial can be requested for a case which resulted in a sentence or imposition of penalties for a felony or misdemeanour under the following circumstances:
A. If the accused was convicted of murder and the person for whose murder he was convicted is found alive;
B. If a person was convicted of an offence and a judgment was later issued against another person for committing the same offence since one of the two judgments must be against a person innocent of the offence;
C. If a person is convicted on the basis of the testimony of an expert or the opinion of a specialist, or document, and later a definitive judgment is issued against the witness or expert on the basis of having borne false witness, or the document is proven to be a forgery;
D. If after the judgment is issued, facts come to light, or documents are presented which were not known at the time of the trial, and these prove the innocence of the convicted person.
E. If the judgment was based on a judgment which was quashed or annulled by lawful means.
F. If a guilty or not guilty judgment, or a final decision for discharge was issued on the basis of a criminal act, either separate or related to the original offence;
G. If for any lawful reason the offence or sentence no longer apply to the accused.
Article 271
A request for a re-trial is submitted to the Public Prosecution by the person convicted, or whoever represents him in law. If the person convicted has died the request can be submitted by his wife or one of his relatives, but the request must clearly explain the ground on which it is based and be accompanied by supporting documentation.
Article 272
The Public Prosecution will carry out an examination of the grounds supporting the request and will check the case documentation. He then submits the papers, together with his assessment, to the Court of Cassation as quickly as possible.
Article 273
The request for a re-trial can only halt implementation of a sentence if it was in respect of the death penalty.
Article 274
The Court of Cassation reviews the request by carrying out an inspection of the case documentation and it is up to the court to undertake whatever inquiries and questioning of witnesses it considers necessary.
Article 275
If the Court of Cassation finds that the request for a re-trial fails to satisfy the necessary legal conditions, it will decide to turn it down. If it finds the request justified, it will return the documentation to the court which issued the judgment, or to the court which has taken its place, together with its decision for a re-trial.
Article 276
The trial takes place on the basis of the requested re-trial referred back to it, and if it decides there is no just cause to interfere with the original judgment, it issues a decision accordingly; if however it decides on annulment, either total or partial, and that the person convicted is not guilty, it will issue a new judgment, but this will not be more severe in its sentence than the previous one. Its judgment will be in accordance with legal procedures.
Article 277
If the person convicted has died, or if he dies after the request has been submitted, the court continues with the measures for a re-trial and appoints someone to be responsible for the defence, if the person who requested the re-trial had not already appointed someone to represent his defence. The court then issues its decision not to interfere with the original judgment, or for annulment, either in full or in part, or for a declaration of not guilty on the part of the deceased. Its decision will be in accordance with legal procedures.
Article 278
Following the annulment of a judgment, all its civil or criminal consequences are removed, either in total or in part, and the amount of any fine or compensation is returned together with any impounded or confiscated property. If such items are no longer present, their value is paid out, unless the confiscation was not a legal duty.
Article 279
If the request for a re-trial is turned down, or if a decision is issued for non-interference with the original judgment, the request cannot be submitted for a second time, on exactly the same grounds as were used in the first request.
BOOK FIVE - Implementation
Section 1 – General Principles
Article 280
It is not possible to execute penalties and measures declared by law for any crime unless an executory judgment is issued by a competent court.
Article 281
The court must issue a judgment having a custodial penalty or measure and should send the convict to penitentiary or prison, according to its decision, along with the memorandum of detention or imprisonment including the measure or penalty which the convict is sentenced with, the start date of executing the decision, the legal article under which he/she was convicted and the period that the convict had spent as an arrested or detained individual. A copy of the memorandum should be sent to the prosecution to follow up the execution of the decision according to the law.
Article 282
Criminal judgments should be executed in the presence of the accused, soon after being issued, or should be considered as in presence judgment, with the exemption of death penalty which should not be executed unless in accordance to the rules stated in the relevant section of this law as well as judgments of imprisonment issued against violations where they should not be executed unless after getting the final degree provided that the convict should present a guarantor of his presence in order to execute the imprisonment penalty whenever it is required, otherwise the penalty will be executed soon against the convict.
Article 283
A. It is not possible, in conditions other than where stated by law, to release a convict before the end of the prison term set out in the sentence against him/her.
B. Whenever the judgment is executed, the administration of the penitentiary or prison should inform the court and prosecution of that.
C. If a report issued by a competent medical committee proves that the convict suffers from mental disability, the court has to decide to put the convict under guardianship in one of the governmental health institutions for mental diseases until the term of penalty ends. If the convict could recover before the term of penalty ends, he/she should be sent back to the prison or institution to finish the term of his penalty where the period which he/she spent under guardianship in the health institution should be excluded from the term of his penalty.
Article 284
The detained could be released if the issued judgment comprises innocence, reconciliation, release, non-responsibility or a non-custodial penalty and if he/she had spent the sentenced penalty period in arrest and detention.
Section 2 – Execution
Article 285[93]
A. The person condemned to death is placed in prison until steps have been taken for carrying out the sentence.
B. The death sentence is only carried out on a decree of the Republic in accordance with the provisions of the following articles.
Article 286
If the Court of Cassation confirms the death sentence as issued, it will send the case file to the Prime Minister[94], who is responsible for passing it on to the President of the Republic to seek the necessary decree for carrying out the sentence.
The President of the Republic issues the decree for carrying out the sentence, or for commuting it, or for pardoning the condemned person. If he issues the decree for implementation, the Prime Minister[95] issues an order to that effect, including the decree of the Republic, in accordance with legal provisions.
Article 287
A. If the condemned person is pregnant when the order for implementation arrives, it is the responsibility of the prison administration to inform the Chief Prosecutor to present a notification to the Minister of Justice to delay execution of the sentence, or to reduce it. The Minister of Justice then submits this notification to the President of the Republic. Implementation of the sentence is delayed until another order is issued by the Minister of Justice in accordance with the decision of the President of the Republic. If the renewed order rules for implementation of the death sentence, it is not carried out until four months after the date of delivery of the child, whether the delivery is before or after the arrival of the order.
B. The judgment in sub-paragraph A is applicable to a condemned person whose child is delivered before the arrival of the order for implementation if the period of four months from the date of her confinement has not expired. The sentence is not carried out until four months have elapsed from the date of her confinement, even if the renewed order for implementation arrives.
Article 288[96]
The sentence of death is carried out by hanging within the prison, or any other place in accordance with the law after the issue of the decree of the President of the Republic for the sentence to be carried out in accordance with Article 286[97]. The execution is witnessed by the Implementation Board, comprising a Misdemeanour Court judge, a member of the Public Prosecution, if available, a representative of the Ministry of the Interior, the director of the prison and the prison doctor, or any other doctor delegated by the Ministry of Health. The accused's legal representative is excused from attendance if he so requests.
Article 289
A. The director of the prison reads the Republic decree for the implementation of the sentence to the condemned person at the place of execution, so that the others present can hear.
B. If the condemned person wishes to make a statement, the judge notes down what is said and this is endorsed by the other members present.
C. Once the sentence has been carried out, the director of the prison signs a form, on which he doctor confirms death, and the time this took place, and the remainder of those resent sign the document accordingly.
Article 290
The death penalty cannot be carried out on official holidays and special festivals connected with the religion of the condemned person.
Article 291
It is the responsibility of the relatives of the condemned person to visit on the day before sentence is to be carried out. It is the duty of the prison administration to info them of the date accordingly.
Article 292
If the religion of the condemned person requires him to make confession before death, the necessary arrangements are to be made for him to meet a cleric of his religion.
Article 293
The corpse of the executed person is handed over to relatives if they so request. Otherwise the prison authorities will carry out the burial at government expense, but there will be no funeral ceremony.
Section 3 - Implementation of Custodial Sentences and Fines
Article 294
A. The sentence is calculated from the day it is implemented against the convicted until noon on the day he is discharged.
B. If the period of imprisonment or detention is only 24 hours, then the convicted person need not spend longer than this time in prison.
Article 295
The period of detention is deducted from the period of the sentence issued against the convicted person for the same offence. If there are several offences within the same case, this period is deducted from the least severe penalty.
Article 296
If a man and his wife are both awarded custodial sentences for a period of more than one year for different offences, and they have not been in prison before, implementation of the sentence with regard to one of them can be postponed if they have responsibility for a young child of less that 12 years and they have a fixed place of residence.
Article 297
The decision to postpone implementation of a sentence is issued in accordance with Article 296 by the court which issued the sentence, in response to the request of the convicted person. The court will demand bail to guarantee that he returns to serve the sentence upon expiry of the period of time in question. The court calculates the amount of the bail and includes it in the decision issued granting the postponement of implementation. It is the responsibility of the court to make appropriate arrangements in this way to ensure the convicted person does not run away.
Article 298
If a person is sentenced to a fine only, and he has already been detained for the offence of which he has been convicted, the amount of the fine can be reduced[98] for every day he was detained. If the person is sentenced to imprisonment and a fine, and the period he spent in detention is longer than the period of the prison sentence, the amount of the fine is to be reduced by one half of one dinar for every extra day served. If the number of days in question adds up to exceed the amount of the fine payable, then the court can decide to discharge him.
Article 299
A. If a person is sentenced to a fine, whether or not with imprisonment as well, and he does not pay the money, the court will sentence him to imprisonment for half of the maximum period for the offence concerned, if he was sentenced to both prison and a fine.
B. If an offence was punished by a fine only, the period of imprisonment to which the court can sentence the accused in the event of the fine not being paid is reduced proportionally to the amount outstanding[99]. However the total period of the prison sentence must not exceed 2 years.
C. The prison sentence comes to an end, in the event of non-payment of the fine, upon the discharge of the fine, or a part of it relative to the remainder of the sentence.
D. Payment of the fine, or a portion of it, can be paid to the court, police station or prison administration, and when this happens the convicted person can be discharged immediately.
BOOK SIX - Miscellaneous
Section 1 - Conclusion of a Criminal Case
Article 300
A criminal case is concluded upon the death of the accused, the issue of a guilty or not guilty judgment, or a judgment or decision of diminished responsibility for the offence concerned, or a final decision for discharge of the accused or a pardon, or the permanent cessation of proceedings, or for other reasons stipulated in law.
Article 301
There cannot be a return to investigation and court proceedings against the accused, for whom the criminal case has been concluded, except under circumstances stipulated in law.
Article 302
A. The final decision issued for the rejection of a complaint in accordance with Article 130 Sub-section A, and the final decision for the rejection of a complaint in accordance with Article 181 Sub-section A, on account of the plaintiff giving up his complaint, both prevent the continuation of proceedings against the accused.
B. The decision issued to reject the complaint on account of the absence of the Plaintiff does not prevent the resumption of the complaint on another occasion, if the Plaintiff had just cause for being absent.
C. The final decision issued for the discharge of the accused in accordance with Article 130 sub-section B, or Article 181 sub-section B does not preclude continuation of the proceedings against the accused on the appearance of new evidence requiring it. But no action can be taken if a period of 1 year has passed since the decision for discharge was issued by the court, and 2 years after the decision issued by the investigative judge. Each of these decisions is then final and subject to the consequences outlined in Article 300.
D. The definitive decision to close a case finally precludes any further investigation proceedings, but if the decision to close it is temporary, the investigation cannot resume until new evidence is presented.
Article 303
The investigation or court proceedings against an accused may be resumed after the criminal case has been closed if, after the issue of the judgment or definitive or final decision, it emerges that there was an act or consequence of the offence for which the accuse was tried, or had proceedings taken against him, which was fundamentally different from the facts as presented in the trial.
Article 304
If the accused dies during the investigation or trial, then the decision is issued to bring the proceedings to a final halt, and the civil case will also stop in consequence. In this case, the civil plaintiff has the right to consult the Civil Court.
Article 305
If a general amnesty is called, and the proceedings and trial against the accused are stopped, the victim of the offence has the right to refer to the Civil Court.
Article 306[100]
Article 307
The discharge of a case for any lawful reason does not prevent the confiscation of goods whose possession is prohibited in law.
Section 2 - The Handling of Impounded Goods
Article 308
At any stage of the investigation or trial the investigative judge or court judge has the right to issue a decision regarding documents, assets or impounded items, or items used to commit an offence or which were the object of an offence, in accordance with the provisions stipulated in the following paragraphs.
Article 309
A. Weapons and other items subject to confiscation orders are to be handed over to the nearest police station, for the legal provisions to be applied, the value of any items sold being retained for the benefit of the Treasury.
B. The provisions of sub-paragraph A apply to weapons and subject to confiscation orders before this law comes into force.
Article 310
Other impounded goods are to be handed over to the person holding them at the time they were impounded, unless they played a role in the offence, or were obtained as a result of the offence, in which case they are to be handed back the previous rightful owner.
Article 311
All assets transferred or exchanged and all assets acquired, either directly or indirectly through such transfers or exchanges are taken into account in the ruling.
Article 312
No decision to hand over goods can be implemented until it has become definitive, and no decision to destroy manuscript or printed materials can be implemented until the criminal proceedings are complete in respect of all the accused persons.
Article 313
A. The decision of the judge or court to hand over impounded goods does not preclude referral to the civil court by the person claiming their ownership.
B. If a dispute arises over the ownership or possession of an impounded item, and a person connected with it seeks a postponement of the decision to hand it
over, the handover may be deferred until the dispute is resolved by the Civil
Court, and the judge or the court will proceed with the investigation or trial.
C. If the items mentioned in sub-paragraph B are deteriorating rapidly or the cost of their retention is extremely high, the investigative judge or criminal court are permitted to sell them in accordance with the Law of Implementation and to retain the proceeds until the results of the court proceedings.
Article 314
A. If no one claims ownership of impounded goods, the investigative judge or court is to issue a list of the items concerned. People then have 6 months in which to come forward to prove their claim to the items within a period. The list is displayed on notice-boards in the court and at the police station. If the property impounded was valuable, then the notice will also be published in local newspapers as well.
B. The investigative judge or court may hand over the impounded goods to anyone able to prove ownership within the period stipulated in law, otherwise they are to be sold on the decision of the judge or court, in accordance with the Law of Implementation, and the income becomes a benefit to the Treasury.
Article 315
Anyone finding items or property thought to be the result of a offence should inform the investigative judge or the court, whose duty it is to dispose of the items in the manner prescribed above.
Article 316
All rights to ownership of the items mentioned in the above provisions are forfeit unless claims are made within a period of five years from the date announced for handover or for sale for the benefit of the Treasury.
Section 3 - Commitment to Keep the Peace and to be of Good Behaviour
Chapter 1 - Commitment to Keep the Peace
Article 317
It is the responsibility of the investigative judge or Public Prosecution to inform the judge of the Court of Misdemeanours if there is a risk that a certain person will commit misdemeanours or carry out acts which amount to a breach of the peace. This must be accompanied by a supporting statement of investigation and evidence.
Article 318
If such a report reaches the judge of the Court of Misdemeanours, he is to take steps
to require the person to whom the report refers to be bound over to keep the peace for a period of not less than 6 months, and not more than one year. This commitment
mayor may not be subject to bail, as covered in the following paragraphs.
Article 319
The judge issues a summons the person on whom the report has been made to appear before him on an appointed day, to present his defence or to rebuff the charge as reported. The sum which will be payable in bail and the period of commitment to good behaviour which will be required must be stated in the summons.
Article 320
On the appointed day, the judge undertakes an investigation of the veracity of the information and listens to the defence of the person reported to him. Once the investigation is concluded, he issues a decision, either rejecting the application if no steps to keep the peace are required or accepting it and binding over the person concerned, with or without bail,[101] if he has committed an action laid down in Article 317.
Chapter 2 - Commitment to good behaviour
Article 321
The Public Prosecution or investigative judge may inform the Misdemeanour Judge of the following persons, if he fears that they might commit an act breaching security, and this should be accompanied by written documents or supporting evidence:
1. Any person who does not have a clear means of making a living.
2. Any person with 2 or more judgments against him involving offences of damage to persons or property or sheltering thieves or absconders, offences against public decency or offences involving public transport or falsifying, copying or forging stamps and paper and metal currency in common or legal circulation.
Article 322
If notification is given to the Misdemeanour Judge, he must take steps to bind over the person who is the subject of the report to good behaviour for a period of no less than a year and not exceeding 3 years, with or without the payment of bail, in the manner prescribed in the following paragraphs.
Article 323
The judge sends a written summons to the person reported, citing the report against him and asking him to appear before him on a particular day, having prepared his defence or a rebuttal of the report. The sum which will be payable in bail and the period of commitment to good behaviour which will be required must be stated in the summons.
Article 324
On the appointed day, the judge undertakes an investigation into the veracity of the information and listens to the defence of the person reported to him. Once the investigation is concluded, he issues a decision, rejecting the application if no steps are required against the accused person, or accepting it and binding over the person concerned, with or without bail, and with the payment of a surety[102] within a specified period if he has committed an action stipulated in the second sub-paragraph of Article 321.
Chapter 3 - Joint Rulings to Keep the Peace and be of Good Behaviour
Article 325
If the person reported does not attend without any legal excuse and has been notified in accordance with the regulations, the judge may decide that he should be arrested and held, under the provisions of Article 109.
Article 326
A. A cash surety can be accepted from this person in place of bail.
B. If this person agrees to be bound over and pays the cash surety or bail, he is released. Otherwise the court decides to hold him in prison until the expiry of the period set by the court for him to be bound over. If he agrees within that period to be bound over and pay the surety or bail, he is then released.
C. The decision of the judge is called "administrative detention".
Article 327[103]
A. If the person who has made the commitment to be bound over does not, for the period stipulated, commit the offence mentioned in the 2 previous sub- paragraphs, the sum or surety paid is returned to him, and the bail is considered discharged.
B. If it is proven that the person breaks his commitment to be bound over under the definitive judgment issued against him, the bail money is obtained from him in accordance with the Law of Implementation and handed over by the judge to the Director[104] of Implementation. It is to be paid in cash, as income to the Treasury.
Article 328
The judge requires the person who was bound over to hand over the bail money under the conditions stipulated in Paragraphs 116 and 117. If he refuses, he is detained until the period covered by the commitment to be bound over is discharged or he hands over the money required.
Article 329
An appeal may be lodged with the Court of Cassation within 30 days of the day following the date of issue of the ruling issued in accordance with this chapter. The Court Cassation is to decide whether to confirm the ruling, reverse it, amend the terms of the commitment to be bound over, the sum of the surety or the period of time for which the person is to be bound over, change the bail, or return the documentation for judicial investigation, issuing any decision as stipulated in Chapter 2 of part 4.
Article 330
Any custodial sentence passed before a ruling has been made to detain the person or which is passed during the period of detention must be at least as long as the period of the detention.
Section 4 - Conditional Discharge[105]
Article 331[106]
A. Conditional discharge of a person given a custodial sentence may be granted in accordance with the provisions of this law if he has served three-quarters of the period, or two- thirds of it if he is a youth, and if it appears to the court that he has been of good behaviour for the duration. However, the period served must not be less than six months. If consecutive sentences were passed, then the time is calculated on the basis of the total amount, regardless of the number of sentences, even if it exceeds the highest limit for implementation in law. Time spent in detention in connection with the case in question is deducted. If part of the sentence is removed as a result of a special or general amnesty, the remaining period is considered as the basis for the sentence itself.
B. The provisions for conditional discharge apply to someone against whom rulings have been issued by criminal courts operating under Criminal Procedure Code or of criminal courts formed under special laws. Any person subject to military court proceedings in accordance with the Military Criminal Procedure Code is excepted from these provisions.
C. The request for conditional discharge is reviewed by the local Court of Misdemeanours, whose jurisdiction covers the prison or rehabilitation centre in which the convicted person serves his sentence. When the request is submitted, even if the person has been transferred to another prison or centre, the President of the Court of Appeal may specify one or more Courts of Misdemeanour, distributing the work between them by means of a formal notification. The decision issued by the court is subject to appeal through cassation by the Public Prosecution or the petitioner for conditional discharge at the Court of Misdemeanours. This is to take place within 30 days, from the day after the date on which it was issued.[107]
D. The following convicted persons are excluded from procedures for conditional discharge:
1. A recidivist who has exceeded the limit for the maximum penalty for a particular type of offence, in accordance with the provisions of Article 140 of the Penal Code No. 111 (1969) or Article 68 of the Baghdad Penal Code;
2. A person convicted of an offence against the external security of the state, or of counterfeiting money, postage stamps or government financial bonds;
3. A person convicted of non-consensual sexual intercourse, buggery, or indecent assault; or of indecency without violence, threat or deception against a person under the age of 18 years; or of sexual intercourse or buggery with relatives[108]; or incitement to prostitution and fornication;[109]
4. A person sentenced to hard labour or imprisonment for an offence of theft, if he has previously been sentenced to hard labour or imprisonment for another theft, even if the sentence has been discharged for any legal reason;
5. A person sentenced to hard labour or imprisonment for embezzlement of public funds, if he had been previously sentenced to hard labour or imprisonment for a similar offence, or sentenced to imprisonment for two or more separate consecutive offences of embezzlement or for an offence of embezzlement, comprising two or more consecutive acts, even if the sentences or these offences have been discharged for any legal reason.
Article 332
A. The reform department of adults or juveniles and the prosecution shall ask the concerned court to consider the conditional release of a convicted person even if no petition was submitted, if it meets all the conditions stated by law. The court shall examine all submitted reports and information about the convict’s behaviour and it can hold any investigation it deems necessary and require the assistance of any relevant authority. After asking the opinion of prosecution and the concerned reform department, the court can issue its decision to conditionally release the convicted person or to dismiss the petition.[110]
B. If the court issues a decision for conditional discharge in accordance with sub- paragraph (A), the convicted person is released and implementation of the remainder of his sentence is suspended. The court may order the implementation or suspension, during this period, of all supplementary sentences issued against him, or the implementation of some and the suspension of others. The court may review this decision based on the report of the Public Prosecution, or based on any information that might reach it, and to order the postponement of what it has decided to implement, or to implement what it had decided to postpone, and it has also to decide whether or not to ban the individual for a specified period of time from the freedom to come and go, or from visiting public houses and coffee houses, or any places he would often go to.
C. The decision for grant a conditional discharge reaches the prison administration or rehabilitation centre of the person to whom it has been issued before the discharge and they are to advise him that if he commits a felony or misdemeanour with intent, or in any way violates the conditions imposed upon him by the court within the trial period specified, the conditional discharge will be revoked.
D. If the person concerned is under the age of 25, he will be handed over to one of the persons mentioned in sub-paragraph 332(A), if they are considered suitable people to look after him, or to another person considered appropriate, after he has made a commitment, supported by a surety fixed at an appropriate level, to be of good behaviour for the period specified.
E. The Public Prosecution will supervise the conduct of the person subject to the conditional discharge to ensure that the conditions stipulated in the paragraph are implemented. He is to inform the court if any of the conditions is violated, where upon the subject will be summoned for the court for a decision on appropriate steps, as set out in this paragraph, or to revoke the decision to grant a discharge.
F. If the request for a conditional discharge is turned down in accordance with sub-paragraph (A), it cannot be re-submitted, until three months has passed from the date of the issue of the decision to reject it, unless the grounds for the rejection were procedural; after correction of the procedural error, a new application can be accepted.
Article 333
A. If the person released on conditional discharge has been given a custodial sentence for a period of no less than 30 days for a felony or misdemeanour committed during the period of his discharge, he attracts the maximum sentence for the judgment originally awarded and the court in question will revoke the discharge which it granted.
B. If the person released on conditional discharge violates the conditions stipulated in sub-paragraph 332(E), amended by this law, the court with jurisdiction will revoke its decision to grant him a discharge.
C. If the court with jurisdiction decides to revoke the decision to grant conditional discharge, it will issue a decision that the person concerned should be arrested and handed over to the prison or rehabilitation centre from which he was released, in order to serve the remainder of his sentence, to which any outstanding supplementary sentence will be added.
Article 334
If the period of suspension of sentence expires without a decision being made to revoke the conditional discharge, in accordance with the provisions of Article 333, which amends this law, the sentences which were suspended before completion become null and void.
Article 335
If implementation of the remainder of his original sentence is suspended, the person granted the conditional discharge is given a custodial sentence of no less than two years for an intentional felony or misdemeanour, an order revoking his conditional discharge will be issued, together with an order for his arrest to serve the remainder of the original sentence.
Article 336
A conditional discharge in accordance with this Chapter cannot be granted to a person who has had a conditional discharge revoked.
Article 337
The Felony Court may, when considering an appeal over a decision to grant a conditional discharge, confirm, discharge or reject it and to return the papers to the court for carrying out any investigation, or completing any steps, or to come to a definite decision on the matter; its decision will be final.[111]
Section 5 - Pardon by the Victim
Article 338
The court which issued a judgment, or its successor, may issue a decision to pardon a given a custodial sentence for an offence for which conciliation is possible, or not the judgment had reached the stage of final adjudication.
Article 339
A. The request for a pardon is submitted by the victim, or anybody representing him in law.
B. If the victims are numerous, a request for pardon will not be accepted unless it is on behalf of all of them.
C. If the persons convicted are numerous, a request for pardon for one or more of them does not apply to all the others.
D. The court accepts the pardon, if the offence is one for which conciliation is possible without the agreement of the court, and it the court may accept in other Circumstances.
E. The request for pardon cannot be revoked and it will not be accepted if it is linked with other conditions, or conditional itself.
Article 340
On receipt of the request, the court can annul the remainder of the principal sentence, as well as supplementary sentences apart from confiscation orders, and can decide on the immediate release of the person convicted.
Article 341
Within ten days of issuing its decision the court sends the case papers to the Court of Cassation to review the decision. For this purpose the Court of Cassation has the power stipulated in Article 337.
Section 6 - Rehabilitation
Paragraphs 342 - 351 [Deleted][112]
Section 7 - Requests for Legal Assistance and Extradition of Criminals
Article 352
In requests from foreign countries for legal assistance and in the extradition of accused and sentenced persons the instructions stipulated in this chapter will be followed in consultation with the regulations of international treaties and agreements and the principles of international law and the principle of reciprocity.
Chapter 1 - Requests for Legal Assistance
Article 353
If a foreign state wants to take measures to pursue an investigation into any offence by means of the judicial authorities in Iraq it must send a request to this effect through diplomatic channels to the Ministry of Justice and the request must be accompanied by a complete statement of the circumstances of the offence, the evidence for the charge the paragraphs of the law which apply and a detailed specification of the measures which it wishes to take.
Article 354
A. If the Ministry of Justice considers that the request meets in full all its legal conditions and that its implementation does not contravene the public regime in Iraq, it will refer it to the investigative judge in whose geographical area it falls in order to achieve the requested measures and a representative from the state requesting the legal assistance is permitted to come and carry them out.
B. The Ministry of Justice has the right to ask the state requesting the legal assistance to deposit an appropriate sum in order to cover witness expenses, experts' fees and charges for documents etc.
C. If he requested measures are carried out the investigative judge will submit the documents to the Ministry of Justice for forwarding to the foreign state. If the Iraqi judicial authorities request legal assistance from the judicial authorities in another state to carry out specific measures, the request win be submitted to the Ministry of Justice so that it can send it through diplomatic channels to the judicial authorities in that state; the judicial measures which are taken in accordance with this legal assistance will have the same legal effect they would- have had if they had been taken the judicial authorities in Iraq.
Article 355
If the Iraqi judicial authorities want to delegate the performance of a particular procedure to the judicial authorities of another State, the request should be submitted to the Ministry of Justice to be sent to the judicial authorities in that State using diplomatic methods. The legal procedure that is performed in accordance with this delegation will have the same legal effect that it would have if the procedure carried out by the judicial authorities in Iraq.
Article 356
The investigative judge or court must request from the Iraqi Consul the completion of a testimony or statement from any Iraqi person abroad and the request must be submitted by the Ministry of Justice with an explanation of the matters about which they wish to ask and the completed testimony or statement will be considered pursuant to the testimony or statement completed by an investigative judge.
Chapter 2 - Extradition of Criminals
Article 357
A. It is stipulated in the request for extradition that the person who is the subject of the request should:
1. Be accused of committing an offence which took place either inside or outside the state requesting the extradition and the offence should carry a prison sentence of not less than two years under the laws of the state requesting extradition and of Iraq; or
2. Been sentenced by the state requesting extradition to a prison sentence of not less than six months.
B. If the person whose extradition is requested has committed many offences the request for extradition will be considered valid if the conditions are met for any one of them.
Article 358
Extradition is not permitted in the following circumstances:
1. If the offence for which the extradition is requested is a political or military offence under Iraqi law;
2. If the offence could be tried before the Iraqi courts in spite of occurring abroad;
3. If the person who is the subject of the request for extradition is pending investigation or trial inside Iraq for the same offence or if a verdict of guilty or not guilty has been passed on him or if an Iraqi court or an investigative judge has ruled that he should be released or if the criminal proceedings have expired under the terms of Iraqi law or of the law of the state requesting his extradition;
4. If the person requested is of Iraqi nationality.
Article 359
If the person whose extradition is requested is pending investigation or trial in Iraq for an offence other than the one for which his extradition is requested, the request will not b deferred until a judgment is issued on his release or his innocence or guilt and the penalty is implemented.
Article 360
The extradition request is to be submitted in writing through diplomatic channels to the Ministry of Justice with the following documents attached if possible:
1. A full statement about the person whose extradition is requested, his description, his photo and papers confirming his nationality if he is a citizen of the stale requesting his extradition;
2. An official copy of the arrest warrant giving the legal description of the offence and the penalty applied and a copy of the investigation papers and of the judgment passed on him. In order to expedite matters the request may be made by telegram or telephone or post without attachments.
Article 361
A. If it the request for extradition meets the legal conditions the Ministry of Justice will refer it to the Court of Felonies designated by the minister.
B. The court will require the person who is the subject of the request to appear before it at a specified session. It will hear what he has to say, have the attachments read out to him, listen to a statement from the representative of the requesting state or his representative if any. It will then listen to the witnesses in the defence of the person who is the subject of the request and to evidence submitted to refute the charge against him.
C. The person who is the subject of the request for extradition may appoint an attorney to represent him and if the offence is a felony under Iraqi law the court must appoint an attorney to defend him.
D. After the court has heard the person's defence it will decide whether to accept or reject the request on the basis of the extent of the evidence put before them.
E. It is not permissible to appeal against the decision of the court to accept or reject request for extradition.
Article 362[113]
A. The court has the right to hold the person whose extradition is requested until it has finished its measures taking into account the provisions of Article 109.
B. If it is decided to reject the request for extradition the person is released immediately and the Ministry of Justice is informed of this. No repeat application is permitted for the same offence.
C. If it is decided to accept the extradition for extradition then the papers are sent over to the Ministry of Justice with the judgment.
D. The Minister of Justice has the right, with the agreement of the Foreign Minister, to agree to or refuse the handover, and if he agrees to it he has the right to stipulate that the person who is the subject of the request should not tried for an offence other than the one for which he was handed over and his decision in this matter will be final.
Article 363
If the Minister of Justice asks the court to stop considering the request, the court has to suspend measures, release the person under investigation and send the papers back to the Ministry of Justice.
Article 364
The Minister of Justice has the right to ask the Iraqi authorities to monitor the person who is the subject of the extradition request until all the documents required have been presented or passed to the court; in this case the Iraqi authorities must take adequate precautions to monitor the person or to place the matter before the investigative judge in his geographical area for a decision to detain or release him taking into account the provisions of Article 109.
Article 365
A. If more than one state requests a extradition for one offence, then the request of the state whose security or interests were damaged by the offence is submitted first, then that of the state in whose territory the offence took place and then that of the state of which the requested person is a citizen.
B. If circumstances demand, the state will present previous records in the request for extradition.
C. If the request for extradition refers to numerous offences, the question of which is given more weight will depend on the circumstances of the offence and its seriousness.
Article 366
On issuing the decision to agree to the request for extradition the court must decide to hand over all items in the possession of the person who is the subject of the request which are connected with the offence or which were used in the commission of the offence or which could be used as evidence against him, provided this does not prejudice the rights of others.
Article 367
If extradition is agreed and the requesting state does not take steps to transfer the person within two months of the date of notification that he was ready for extradition, he is to be released immediately and he cannot be extradited after that for the same offence.
Article 368
If the Iraqi authorities request the extradition from abroad of an accused person or criminal so that he can be tried or can complete a sentence already passed on him, this request must be put to the Ministry of Justice attached to the documents stated in Article 360 to take the necessary steps to request his extradition by diplomatic means.
Section Eight - Transitional Provisions
Article 369
A. The Court of Cassation examines the provisions, the decisions and the measures which the law stipulates will be appealed at the Court of Felonies if the cassation judgment is submitted to the Court of Cassation before this law comes into effect.
B. The Felony Court will refer cases of felony and misdemeanour in connection with which appeals were lodged before this law came into effect to the Court of Cassation for a decision.
C. The Court of Misdemeanours will refer criminal cases which were transferred to it before this law came into effect to the relevant Felony Court for decision.
Article 370
A. The provisions of Chapter Three of Book Four on correcting the cassation judgment does not apply to cassation judgments issued before this law took effect.
B. The provisions of the sub-paragraphs 302.c and 302.d apply to judgments issued before this law took effect.
Section Nine - Final Paragraphs
Article 371[114]
Article 372
This law takes effect thirty days after the date of its publication in the Official Gazette.
Article 373
The ministers must carry out the provisions of this law.
Written in Baghdad on the eighth of Dhu Al-Hijja 1390 AH corresponding to 4 February 1971.
AHMID HASAN AL-BAKR
Head of the Revolutionary Command Council
-----------------------
[1] Published in the Official Gazette, issue 2004 of 31 May 1971
[2] For example, Judge Nabil Abdurahman Haiyawi’s widely used annotated practitioner’s text
[3] Original version, section 8(1). Revised version, section 7(1).
[4] qadi al-tahqiq
[5] muhaqiq
[6] muhaqiq al-qadai’
[7] See Articles 39 to 46, 52(A), 79 and 103
[8] Note that this is incorrectly stated to be the 12th amendment throughout Judge Nabil Abdulrahman Haiyawi’s book on the CPC, e.g. at page 99, footnote 1
[9] note also CPA Public Notice Regarding the Creation of the CCCI and Amendments to the CPC, 18 June 2003. CPA Public Notices were not published in the Official Gazette
[10] note that as explained in the introduction above, a revised version of Memorandum 3, signed on 27 June 2004, is on the CPA archive website at . The revised version was never published in the Official Gazette. We have referred herein to the original version
[11] In accordance with the 4th and 5th sub-paragraphs of Article 65 of the Law of Judicial Regulation No 160 of 1979 the expression 'the Criminal Court' has replaced the expression 'The Supreme Penal Court' and the expression 'The Court of Misdemeanours' has replaced the expression 'The Penal Court' wherever they are mentioned in the laws and the term 'examination jurisdiction' has become 'the investigative court' with effect from 16 January 1980 in the paragraphs beneath.
[12] Since the issue of the Judicial Regulation No. 160 of 1979 the word qadi (judge) has been used instead of the word hakim (judge).
[13] The original text read “Slander, verbal abuse, spreading false information, oral threats or slight injury provided that the offence was not committed against someone in the performance of a public service”, it was amended by Law 9 of 1992 (Eleventh amendment to the Criminal Procedure Code No 23 of 1971, published in the Official Gazette, issue 3402 of 20 April 1992 and then again by Law 20 of 1999 (Amendment to the Criminal Procedure Code No 23 of 1971), published in the Official Gazette, issue 3785 of 2 August 1999 to read as presently stated
[14] Where necessary, the term Minister of Justice is to be replaced with the most appropriate body pursuant to CPA Memorandum 12, Section 7
[15] This text was substituted for the original text by Law No. 119 of 1987 (Amendment to the Criminal Procedure Code No 23 of 1971), published in the Official Gazette, issue 3184 of 11 January 1988
[16] These paragraphs were repealed in accordance with the first clause of Article 71 of the Law of Public Prosecution No. 159 of 1979 published in the Official Gazette, issue 2716 on 16 January 1980
[17] literally (although misleadingly) ‘members of the judicial system’
[18] mufawath (less than an officer but more than a mere ordinary policeman)
[19] mufawath (less than an officer but more than a mere ordinary policeman)
[20] Note that the penalty for providing false information in a notification of an offence in Article 243 of the Penal Code No. 111 of 1969 was recently increased to 10 years by Law No. 15 of 2009, published in the Official Gazette, issue 4133 of 17 August 2009
[21] Investigative judge
[22] The second section of Article 47 was added by Law No. 119 of 1988 (Tenth amendment to the Criminal Procedure Code No. 23 of 1971), published in the Official Gazette, issue 3222 of 3 October 1988
[23] Where necessary, the term Minister of Justice is to be replaced with the most appropriate judicial body pursuant to CPA Memorandum 12, Section 7
[24] mufawath (less than an officer but more than a mere ordinary policeman)
[25] The original text stating “E. The investigator shall be appointed by order from the Minister of Justice, provided he possesses a recognized qualification in law. Police officers and their authorized agents and legal officers of the Ministry of Justice may be granted the powers of an investigator by order from the Minister of Justice. F. No investigator may perform the functions of his office for the first time unless he has sworn the following oath before the President of the Court of Appeal.” was amended to that above by Law No. 10 of 1995 (Amendment to the Criminal Procedure Code No. 23 of 1971) published in the Official Gazette, issue 3568 of 19 June 1995
[26] Where necessary, the term Minister of Justice is to be replaced with the most appropriate judicial body pursuant to CPA Memorandum 12, Section 7
[27] Where necessary, the term Minister of Justice is to be replaced with the most appropriate body pursuant to CPA Memorandum 12, Section 7
[28] Where necessary, the term Minister of Justice is to be replaced with the most appropriate body pursuant to CPA Memorandum 12, Section 7
[29] “may” replaced with “must” by CPA Memorandum 3 Section 4(a), signed 18 June 2003, published in the Official Gazette, issue 3978 of 17 August 2003
[30] RCC Resolution 203 of 2001 dictates that the testimony of a person sentenced under Article 389 of the Penal Code No 111 of 1969 for gambling offences will not be accepted before a court unless it is the only evidence in a criminal case; 3 years have passed since the sentence and the local public council have approved his repentance.
[31] The words “As far as possible”, at the beginning the final sentence, were removed by CPA Memorandum 3 Section 4(b), signed 18 June 2003, published in the Official Gazette, issue 3978 of 17 August 2003
[32] CPA Order 31, signed 10 September 2003, published in the Official Gazette, issue 3980 of March 2004 in Section 6 states, "Notwithstanding the bail provisions contained in Paragraph 109 of the Criminal Proceedings Law No. 23 of 1971 the reviewing judge may order a person suspected of committing an offense punishable by life imprisonment to be held without bail until trial." The Arabic version of this section makes it clear that the reference is to offences punishable by ‘life which means life’ – rather than just life imprisonment as defined in Article 87 of the Penal Code
[33] As defined in Article 87 of the Penal Code No. 111 of 1969 to mean 20 years in prison rather than the concept introduced by the CPA of ‘life which means life’ for a limited range of offences
[34] The text of sub-paragraph A is as amended according to Article 27 of Law of Implementation No 45 of 1980, published in the Official Gazette, issue 2762 of 17 March 1980
[35] amended in accordance with Article 101 of Law 201 of 1978 (6th amendment to the Criminal Procedure Code), published in the Official Gazette, issue 2691 of 8 January 1979; and Article 27 of the Law of Implementation No 45 of 1980, published in the Official Gazette, issue 2762 of 17 March 1980
[36] sub-sections (B) and (C) were added by CPA Memorandum 3, Section 4(c), signed 18 June 2003, published in the Official Gazette, issue 3978 of 17 August 2003. Note also CPA Memorandum 3, section 5 which provides the right to be informed upon arrest of the right to remain silent and the right to an attorney. Note also CPA Memorandum 3, section 8, which expands the right of representation at trial beyond those accused of felonies to those accused of any crimes.
[37] hudurahu meaning the point at which the accused presents himself to the authorities following a summons or is presented following an arrest. Note that the constitution in paragraph 19(13) requires the file to be produced before the investigative judge within 24 hours of an arrest
[38] oddly the word used here is iqrar (admission) rather than i’tiraf (confession)
[39] in Arabic, a witness gives ‘testimony’ (shahada); an accused gives a ‘statement’ (ifadha)
[40] i.e. the sentence will not be carried out until after either an appeal has taken place or the period for submitting an appeal has expired – Article 16(2) of the Penal Code
[41] This sub-paragraph was added in accordance with Law No. 33 of 1980 (Seventh amendment to the Criminal Procedure Code No. 23 of 1971) published in the Official Gazette, issue 2757 of 18 February 1980
[42] Where necessary, the term Minister of Justice is to be replaced with the most appropriate judicial body pursuant to CPA Memorandum 12, Section 7 although sub-section 136(A) may not seem appropriate for such a substitution given its political nature
[43] Resolution 453 of 1984, Article 1, published in the Official Gazette on 30 April 1984 added the minister’s deputy
[44] This sub-paragraph has been amended in accordance with Law No. 201 of 1978 (Sixth amendment to the Criminal Procedure Code No. 23 of 1971) published in the Official Gazette, issue 2691 of 27 December 1979; RCC Resolution 997 of 30 July 1978, published in the Official Gazette, issue 2667 of 7 August 1978; and RCC Resolution 453 of 1984, published in the Official Gazette on 30 April 1984. It was suspended by CPA Memorandum 3, Section 4(d) signed 18 June 2003, published in the Official Gazette, issue 3978 of 17 August 2003, subsequently re-instated by Interim Government Order 14 of 2005. Its operation was suspended again by the transitional government, re-instated again and suspended again in 2009. It was the subject of the first case brought to the Federal Supreme Court (1 of 2005) and has been the subject of 2 attempts at repeal or amendment by the Council of Representatives in 2007 neither of which were published in the Official Gazette
[45] Note that RCC Resolution 104 of 1988 effectively adds the Court of Appeal in its Cassation function and note also the Juvenile Investigation Court and Juvenile Court established and regulated by the Juvenile Welfare Law No. 76 of 1983
[46] Note that pursuant to Article 134(D) in the case of an infraction where there is no claim for compensation or return of property, the investigative judge can make the ruling without transfer
[47] Where necessary, the term Minister of Justice is to be replaced with the most appropriate body pursuant to CPA Memorandum 12, Section 7
[48] e.g. RCC Resolution 895 of 1981, published in the Official Gazette, issue 2842 of 27 July 1981 authorises the Governors and Heads of the Administrative Units in Qadhas and Nahiyaz with the power of misdemeanor judges in relation to the law of Regulating Fishing and Exploiting the Aquatic Life and its Protection, No 48 of 1976. Article 1 of Resolution 1630 of 1981 states that “Governors and Chief of the administrative units in constituencies and districts are empowered with the jurisdiction of a misdemeanour judge to practice a penal authority stated in laws to give them such authority.”
[49] The Felony Court reviews infraction decisions made by investigative judges
[50] Although this section was not expressly amended, Revolutionary Command Council Resolution No 104 of 1988, published in the Official Gazette, issue 3188 of 8 February 1988 effectively transferred the jurisdiction to review the decisions of the Misdemeanour Court to the Court of Appeal in its Cassation Character
[51] Where necessary, the term Minister of Justice is to be replaced with the most appropriate body pursuant to CPA Memorandum 12, Section 7
[52] Sub-section D was added by Law No. 30 of 2001 (amendment to the Criminal Procedure Code No. 23 of 1971) published in the Official Gazette, issue 3872 of 2 April 2001
[53] CPA Memorandum 3 signed 18 June 2003, published in the Official Gazette, issue 3978 of 17 August 2003 added at Section 5, a right to be informed of a right to an attorney upon arrest and, at Section 8, a right to representation at detention and investigation court level. The English text gave the right to representation at the detention stage only to those accused of felonies. The Arabic text of the same Memorandum however gives the right to those accused of any crimes. CPA Regulation 1, section 3(2) says that in the case of divergence, the English text will prevail.
[54] this right was extended from felonies to all crimes by CPA Memorandum 3 Section 8(2) signed 18 June 2003, published in the Official Gazette, issue 3978 of 17 August 2003
[55] the words “at a rate of no less than 10 dinars and no more than 50 dinars, with the costs borne by the state treasury” were deleted by CPA Memorandum 3 Section 4(e) signed 18 June 2003, published in the Official Gazette, issue 3978 of 17 August 2003
[56] the words “of no more than 50 dinars” were deleted by CPA Memorandum 3 Section 4(e), signed 18 June 2003, published in the Official Gazette, issue 3978 of 17 August 2003
[57] Law No. 173 of 1963
[58] [translator's note - trial in which both parties appear in person]
[59] This sub-paragraph was added in accordance with Law No. 78 of 1984 (Ninth amendment to the Criminal Procedure Code 23 of 1971), published in the Official Gazette, issue 3010 of 10 September 1984
[60] [i.e. ‘non-defence’ witnesses]
[61] the words “via the court” were deleted by CPA Memorandum 3 Section 4(f), signed 18 June 2003, published in the Official Gazette, issue 3978 of 17 August 2003
[62] Articles 58 to 68 dealing with the process by which witnesses are heard by the investigative judge
[63] The sentence, “A refusal to answer will be considered as evidence against the accused.” was purportedly deleted by CPA Memorandum 3 Section 4(g), signed 18 June 2003, published in the Official Gazette, issue 3978 of 17 August 2003. However the revised version of CPA Memorandum 3 (which is the version on the CPA archive website at ), signed on 27 June 2004 and never published in the Official Gazette is silent on this provision and therefore does not contain this deletion. The reason for the silence in the revised Memorandum 3 would appear to be that the original sentence actually read “A refusal to answer will NOT be considered as evidence against the accused”
[64] The word ‘satisfied’ (i’qtinaiha) comes from the root qana’a and means ‘satisfied so that it is sure’ or ‘convinced’
[65] note Court of Cassation Decision No. 144 of 2007 to the effect that a confession which was subsequently withdrawn and which was contradicted by other evidence was insufficient evidence
[66] see Articles 230 to 232
[67] The text of sub-paragraph (B) has been amended in accordance with Article 1 of Law No. 193 of 1975 (Fourth amendment to the Criminal Procedure Code, No. 23 of 1971) published in the Official Gazette, issue 2504 of 15 December 1975
[68] This text replaces the repealed original text of Article 184 in accordance with the Article 2 of Law No. 193 of 1975 (Fourth amendment to the Criminal Procedure Code, No. 23 of 1971) published in the Official Gazette, issue 2504 of 15 December 1975
[69] “must” replaced by “may” by CPA Memorandum 3 Section 4(h), signed 18 June 2003, published in the Official Gazette, issue 3978 of 17 August 2003
[70] This text replaces the repealed original text of Article 185 in accordance with Article 2 of Law No. 193 of 1975 (Fourth amendment to the Criminal Procedure Code, No. 23 of 1971) published in the Official Gazette, issue 2504 of 15 December 1975
[71] This text replaces the repealed original text of Article 186 in accordance with Article 2 of Law No. 193 of 1975 (Fourth amendment to the Criminal Procedure Code No. 23 of 1971) published in the Official Gazette, issue 2504 of 15 December 1975
[72] the words “based on permission from the Minister of Justice” were deleted by CPA Memorandum 3 Section 4(i), signed 18 June 2003, published in the Official Gazette, issue 3978 of 17 August 2003
[73] The word ‘satisfied’ (i’qtinaiha) comes from the root qana’a and means ‘satisfied so that it is sure’ or ‘convinced’
[74] a ‘penal order’ is the determinative final decision of the investigation judge in a minor infraction case as set out in Article 205
[75] The word ‘satisfied’ (i’qtinaiha) comes from the root qana’a and means ‘satisfied so that it is sure’ or ‘convinced’
[76] al-adhilha is the total evidence
[77] qarina is background information
[78] qarina is background information
[79] the words “and if there is no other evidence which proves it to be a lie” were deleted by CPA Memorandum 3 Section 4(j), signed 18 June 2003, published in the Official Gazette, issue 3978 of 17 August 2003
[80] see Articles 51 to 86
[81] note Court of Cassation Decision No. 144 of 2007 to the effect that a confession which was subsequently withdrawn and which was contradicted by other evidence was insufficient evidence
[82] the words “whether it be physical or moral, a promise or a threat. Nevertheless, if there is no causal link between the coercion and the admission or if the admission is corroborated by other evidence which convinces the court that it is true or which has led to uncovering a certain truth, then the court may accept it” were deleted by CPA Memorandum 3, Section 4(k), signed 18 June 2003, published in the Official Gazette, issue 3978 of 17 August 2003
[83] This Article which read “The minutes, reports, and official letters written by officials and employees dealing with an infraction are regarded as proof of the events they contain. The court may rely on these as its reason for its ruling in the infraction. It is not however obliged to investigate their veracity. The parties nevertheless can prove that that they are true.” was suspended by CPA Memorandum 3, Section 4(l), signed 18 June 2003, published in the Official Gazette, issue 3978 of 17 August 2003
[84] pursuant to Articles 47(1) and 108 of Juvenile Welfare Law No. 76 of 1983 the minimum age is raised to 9 years
[85] now found in the Juvenile Welfare Law No. 76 of 1983
[86] RCC Resolution 104 of 1988 transferred jurisdiction for appeals from the Misdemeanour Court to the Court of Appeal in its Cassation Function. It did not expressly amend this Article but it effectively did so. We have presented it here in its ‘amended form’
[87] This text replaces the original and previously amended text of this Article in accordance with Article (3) of the Law No. 9 of 1992 (Eleventh amendment to the Criminal Procedure Code No. 23 of 1971), published in the Official Gazette, issue 3402 of 20 April 1992 without prejudice to Article 16 of the Public Prosecution Law No. 159 of 1979. Subparagraph A had previously been amended in accordance with Paragraph 1 of Law No. 91 of 1976 (Fifth amendment to the Criminal Procedure Code No. 23 of 1971) published in the Official Gazette, issue 2545 of 23 August 1976
[88] formerly Law No. 26 of 1963, replaced by Law No. 160 of 1979
[89] RCC Resolution 104 of 1988 transferred jurisdiction for appeals from the Misdemeanour Court to the Court of Appeal in its Cassation Function. It did not expressly amend this Article but it effectively did so.
[90] Sub-paragraph C was added by Article 4 of Law No. 9 of 1992 (Eleventh amendment to the Criminal Procedure Code No. 23 of 1971) published in the Official Gazette, issue 3402 of 20 April 1992
[91] This sub-paragraph was added in accordance with Paragraph 2 of Law No. 91 of 1976 (Fifth amendment to the Criminal Procedure Code No. 23 of 1971) published in the Official Gazette, issue 2545 of 23 August 1986
[92] This sub-paragraph was added in accordance with Paragraph 2 of Law 91 of 1976 (5th amendment of the Law on Principles of Criminal Trials No.23/1971) published in the Official Gazette, issue 2545 of 23 August 1976
[93] Note that Articles 285 to 293 having been suspended by CPA Memorandum 3, Section 4(m), signed 18 June 2003, published in the Official Gazette, issue 3978 of 17 August 2003 were re-instated by Law 13 of 2007 which purported to give them retrospective effect to 8 August 2004, the date on which Order 3 of 2004: Re-instating the Death Penalty, published in the Official Gazette, issue 3987 of September 2004 came into force
[94] Law 13 of 2006 provided that the Prime Minister replace the Minister of Justice in this role
[95] Law 13 of 2006 provided that the Prime Minister replace the Minister of Justice in this role
[96] This Paragraph was amended by Law 65 of 1974 (Third amendment to the Criminal Procedure Code No. 23 of 1971), published in the Official Gazette, issue 2348 of 7 May 5 1974
[97] The text “after the issue of the decree of the Republic for the sentence to be carried out in accordance with Article 286” was substituted for the original text which read “after passing a period not less than 30 days on the date of its issue by the competent Criminal Court in accordance with Law No. 65 of 1974 (Third amendment to the Criminal Procedure Code No. 23 of 1971), published in the Official Gazette, issue 2348 of 7 May 1974
[98] The words “one half of one dinar” were deleted by CPA Memorandum 3, Section 4(n), signed 18 June 2003, published in the Official Gazette, issue 3978 of 17 August 2003
[99] The words “one day for each one half of one dinar outstanding” were replaced by “reduced proportionally to the amount outstanding” by CPA Memorandum 3, Section 4(o), signed 18 June 2003, published in the Official Gazette, issue 3978 of 17 August 2003
[100] This Article which had read “The issue of a Republican edict for a special amnesty wipes out the principal and secondary penalties, without prejudice to the right to restitution, compensation, or confiscation.” was suspended by CPA Memorandum 3, Section 4(p), signed 18 June 2003, published in the Official Gazette, issue 3978 of 17 August 2003
[101] The words “and with the payment, within a specified period, of surety of not less than 20 dinars and not more than 200 dinars,” were deleted by CPA Memorandum 3, Section 4(q), signed 18 June 2003, published in the Official Gazette, issue 3978 of 17 August 2003
[102] The words “of no less than 50 dinars and not exceeding 500 dinars,” were deleted by CPA Memorandum 3, Section 4(r), signed 18 June 2003, published in the Official Gazette, issue 3978 of 17 August 2003
[103] The text is as amended in accordance with by Article 27, Law of Implementation No 45 of 1980, published in the Official Gazette, issue 2762 of 17 March 1980
[104] The Chairman of Implementation became known as the Director of Implementation in accordance with the provisions of the Law of Implementation No 45 of 1980, published in the Official Gazette, issue 2762 of 17 March 1980
[105] Paragraphs 331 - 334 were substituted for the original text in accordance with Law No. 34 of 1974 (Second amendment to Criminal Procedure Code, No. 23 of 1971, published in the Official Gazette, issue 2333 of 27 March 1974
[106] Note that CPA Order 31, signed 10 September 2003, published in the Official Gazette, issue 3980 of March 2004 in Section 4, with reference to increased penalties imposed for wrecking, destroying or otherwise damaging water, electricity, or oil installations or other public utilities contrary to Penal Code Paragraph 353(1) states, “Persons convicted of committing these offenses shall not be eligible for Conditional Discharge as set forth in Paragraph 331 of the Criminal Proceedings Law.”
[107] The text of sub-paragraph C was initially added by Law 61 of 1972 (First amendment to the Criminal Procedure Code No. 23 of 1971), published in the Official Gazette, issue 2149 of 8 June 1972 and then amended by Article 4 of Law No. 91 of 1976 (Fifth amendment to the Criminal Procedure Code No. 23 of 1971) published in the Official Gazette, issue 2545 of 23 July 1976
[108] this is a reference to the prohibited relatives to whom the crime of incest would apply
[109] The text of sub-subsection D(3) was amended in accordance with Law No. 87 of 2001 (Amendment to Criminal Procedure Code No. 23 of 1971) published in the Official Gazette, issue 3904 of 12 November 2001
[110] Article 332 was replaced in its entirety by the current text in accordance with law No. 34 of 1974 (Second amendment to the Criminal Procedure Code No. 23 of 1971). The text of sub-paragraph A was substituted for the previous text in accordance with Article 5 of Law No. 9 of 1992 (Eleventh amendment to the Criminal Procedure Code No. 23 of 1971) published in the Official Gazette, issue 3402 of 20 April 1992
[111] This Article replaced the previous text of Article 337, in accordance with Article 5 of Law No. 91 of 1976 (5th amendment to the Criminal Procedure Code No. 23 of 1971) published in the Official Gazette, issue 2545 of 23 July 1976
[112] These paragraphs were deleted along with the Rehabilitation Law No. 3 of 1967 in accordance with Republican Command Council Decree No 997 of 30 July 1978 published in the Official Gazette of 7 August 1978
[113] the text in sub-paragraphs C and D of this Article replaced the original texts in accordance with Article 1 of Law No. 201 of 1980 (Eighth amendment to the Criminal Procedure Code, No. 23 of 1971) published in the Official Gazette, issue 2807 of 15 December 1980)
[114] This Article which had read, “A. The Baghdad law of the principles of the Criminal Court, its appendices and amendments are cancelled and those provisions of the 1923 law of the Rehabilitation of Criminals, and its amendments and from the law of Rehabilitation No 3 of 1967 which conflict with the provisions of this law are void. B. Every stipulation of any other law which conflicts with the provisions of this law in general is void” was suspended by CPA Memorandum 3, Section 4(r), signed 18 June 2003, published in the Official Gazette, issue 3978 of 17 August 2003
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